ntoemtt)  of 
California 


n.  rf 


WAR  POWERS 


UNDER    THE 


CONSTITUTION  OF  THE  UNITED  STATES. 

MILITARY  ARRESTS, 
RECONSTRUCTION,  AND  MILITARY  GOVERNMENT. 

ALSO,    NOW     FIRST     PUBLISHED, 

WAR  CLAIMS  OP  ALIENS. 

WITH  NOTES 

OX   THE 

ACTS  OP  THE  EXECUTIVE  AND  LEGISLATIVE  DEPAKTMENTS 

DURING-     OUR     CIVIL     ^V.A.R, 

AND    A    COLLECTION    OF 

CASES  DECIDED  IN  THE  NATIONAL  COURTS. 
BY  WILLIAM  WHITING. 


FORTY-THIRD  EDITION. 


BOSTON: 
LEE    AND    SHEPARD,    PUBLISHERS 

IN-ETW  YORK: 

LEE,    SHEPARD    AND    DILLINGHAM. 
1871. 


Entered,  according  to  Act  of  Congress,  in  the  year  1870, 

BY  WILLIAM  WHITING, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

SPfiECKELS 


Printed  at  the  University  Press,  Cambridge,  by  Welch,  Bigelow,  £  Co. 


STEREOTYPED  AT  THE  BOSTON  STEREOTYPE  FOUNDRY, 
No.  19  Spring  Lane. 


PREFACE  TO   THE  SECOND   EDITION. 


WAR  POWERS  OF  THE  PRESIDENT,  AND  LEGISLATIVE  POW- 
ERS  OF  CONGRESS,  IN  RELATION  TO  REBELLION,  TREASON, 
AND  SLAVERY. 

THE  following  pages  were  not  originally  intended  for  publica 
tion,  but  were  written  by  the  author  for  his  private  use.  He  has 
printed  them  at  the  request  of  a  few  friends,  to  whom  the  opinions 
therein  expressed  had  been  communicated ;  and  he  is  not  unaware 
of  several  errors  of  the  press,  and  of  some  inaccuracies  of  expres 
sion,  which,  in  one  or  two  instances,  at  least,  modify  the  sense  of 
the  statements  intended  to  be  made.  The  work  having  been 
printed,  such  errors  can  conveniently  be  corrected  only  in 
the  "errata."  This  publication  was  principally  written  in  the 
spring  of  1862,  the  chapter  on  the  operation  of  the  Confiscation 
Act  of  July  17th,  1862,  having  been  subsequently  added.  Since 
that  time  President  Lincoln  has  issued  his  Emancipation  Procla 
mation,  and  several  military  orders,  operating  in  the  Free  States, 
under  which  questions  have  arisen  of  the  gravest  importance. 
The  views  of  the  author  on  these  subjects  have  been  expressed 
in  several  recent  public  addresses ;  and,  if  circumstances  permit, 
these  subjects  may  be  discussed  in  a  future  addition  to  this 
pamphlet. 

To  prevent  misunderstanding,  the  learned  reader  is  requested 
to  observe  the  distinction  between  emancipating  or  confiscating 
slaves,  and  abolishing  the  laws  which  sustain  slavery  in  the  Slave 

(iii) 

101 5  -12 


IV  PREFACE. 

States.  The  former  merely  takes  away  slaves  from  the  possession 
and  control  of  their  masters ;  the  latter  deprives  the  inhabitants 
of  those  States  of  the  lawful  right  of  obtaining,  by  purchase  or 
otherwise,  or  of  holding  slaves.  Emancipation  or  confiscation 
operates  only  upon  the  slaves  personally;  but  a  law  abolishing 
the  right  to  hold  slaves,  in  the  Slave  States,  operates  on  all  citizens 
residing  there,  and  effects  a  change  of  local  law.  If  all  the  horses 
now  in  Massachusetts  were  to  be  confiscated,  or  appropriated  by 
government  to  public  use,  though  this  proceeding  would  change 
the  legal  title  to  these  horses,  it  would  not  alter  the  laws  of  Mas 
sachusetts  as  to  personal  property;  nor  would  it  deprive  our 
citizens  of  the  legal  right  to  purchase  and  use  other  horses. 

The  acts  for  confiscation  or  emancipation  of  enemy's  slaves, 
and  the  President's  Proclamation  of  the  22d  of  September,  do 
not  abolish  slavery  as  a  legal  institution  in  the  States  ;  they  act 
upon  persons  held  as  slaves ;  they  alter  no  local  laws  in  any  of 
the  States;  they  do  not  purport  to  render  slavery  unlawful ;  they 
merely  seek  to  remove  slaves  from  the  control  of  rebel  masters. 
If  slavery  shall  cease  by  reason  of  the  legal  emancipation  of 
slaves,  it  will  be  because  slaves  are  removed;  nevertheless,  the 
laws  that  sanction  slavery  may  remain  in  fall  force.  The  death 
of  all  the  negroes  on  a  plantation  would  result  in  a  total  loss  to 
the  owner  of  so  much  "  property ; "  but  that  loss  would  not  pre 
vent  the  owner  from  buying  other  negroes,  and  holding  them  by 
slave  laws.  Death  does  not  interfere  with  the  local  law  of  prop 
erty.  Emancipation  and  confiscation,  in  like  manner,  do  not 
necessarily  interfere  with  local  law  establishing  slavery. 

The  right  to  liberate  slaves,  or  to  remove  the  condition  or  status 
of  slavery,  as  it  applies  to  all  slaves  living  at  any  one  time,  or  the 
right  to  abolish  slavery  in  the  sense  of  liberating  all  existing 
slaves,  is  widely  different  and  distinct  from  the  right  of  repealing 
or  annulling  the  laws  of  States  which  sanction  the  holding  of 
slaves.  State  slave  laws  may  or  may  not  be  beyond  the  reach 
of  the  legislative  powers  of  Congress ;  but  if  they  are,  that  fact 


PREFACE.  V 

would  not  determine  the  question  as  to  the  right  to  emancipate, 
liberate,  or  to  change  the  relation  to  their  masters  of  slaves  now 
living ;  nor  the  question  as  to  the  right  of  abolishing  slavery,  in 
the  sense  in  which  this  expression  is  used  when  it  signifies 
the  liberation  of  persons  now  held  as  slaves,  from  the  operation 
of  slave  laws;  while  these  laws  are  still  left  to  act  on  other  per 
sons  who  may  be  hereafter  reduced  to  slavery  under  them. 

It  is  not  denied  that  the  powers  given  to  the  various  depart 
ments  of  government  are  in  general  limited  and  defined ;  nor  is 
it  to  be  forgotten  that  "the  powers  not  delegated  to  the  United 
States  by  the  constitution,  nor  prohibite'd  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people."  (Const. 
Amendment,  Art.  X.)  But  the  powers  claimed  for  the  President 
and  for  Congress,  in  this  essay,  are  believed  to  be  delegated  to 
them  respectively  under  the  constitution,  expressly  or  by  neces 
sary  implication. 

The  learned  reader  will  also  notice,  that  the  positions  taken  in 
this  pamphlet  do  not  depend  upon  the  adoption  of  the  most  liberal 
construction  of  the  constitution,  Art.  I.  Sect.  8,  Cl.  l,which  is  deemed 
by  eminent  statesmen  to  contain  a  distinct,  substantive  power  to 
pass  all  laws  which  Congress  shall  judge  expedient  "  to  provide  for 
the  common  defence  and  general  welfare?  This  construction  was 
held  to  be  the  true  one  by  many  of  the  original  framers  of  the 
constitution  and  their  associates  ;  among  them  was  George  Mason 
of  Virginia,  who  opposed  the  adoption  of  the  constitution  in  the 
Virginia  convention,  because,  among  other  reasons,  he  considered 
that  the  true  construction.  (See  Elliott's  Debates,  vol.  ii.  327, 328.) 
Thomas  Jefferson  says,  (Jefferson's  Correspondence,  vol.  iv.  p.  306,) 
that  this  doctrine  was  maintained  by  the  Federalists  as  a  party, 
while  the  opposite  doctrine  was  maintained  by  the  Republicans 
as  a  party.*  Yet  it  is. true  that  several  Federalists  did  not  adopt 

*  Elbridge  Gerry,  of  Massachusetts,  founded  his  chief  objections  to  the  Constitution 
on  the  grounds,  1.  That  the  legislature  had  power  to  make  what  laws  they  might  please 
to  call  necessary  and  proper;  2.  To  raise  armies  and  money  without  limit;  3.  To  establish 
tribunals  without  juries.  Other  objections  he  could  waive.  These  he  could  not.  Gerry, 
Gov.  Mason  and  Edmund  Randolph,  Jr.,  of  Virginia,  did  not  vote  for  the  adoption  of  the 
Constitution. 


VI  PREFACE. 

that  view,  but  Washington,  Adams,  Jefferson,  Madison,  Monroe, 
Hamilton,  Mason,  and  others,  were  quite  at  variance  as  to  the 
true  interpretation  of  that  much  contested  clause.  Southern 
statesmen,  drifting  towards  the  state-rights  doctrines,  as  time 
passed  on,  have  generally  adopted  the  strictest  construction  of 
the  language  of  that  clause ;  but  it  has  not  yet  been  authorita 
tively  construed  by  the  Supreme  Court.  Whatever  may  be  the 
extent  or  limitation  of  the  power  conveyed  in  this  section,  it  is 
admitted  by  all  that  it  contains  the  power  of  imposing  taxes  to 
an  unlimited  amount,  and  the  right  to  appropriate  the  money  so 
obtained  to  "  the  common  defence  and  public  welfare."  Thus  it 
is  obvious,  that  the  right  to  appropriate  private  property  to  public 
use,  and  to  provide  compensation  therefor,  as  stated  in  Chap 
ter  I. ;  the  power  of  Congress  to  confiscate  enemy's  property  as 
a  belligerent  right ;  the  power  of  the  President,  as  commander-in- 
chief,  as  an  act  of  war,  to  emancipate  slaves ;  or  the  power  of 
Congress  to  pass  laws  to  aid  the  President,  in  executing  his  mili 
tary  duties,  by  abolishing  slavery,  or  emancipating  slaves,  under 
Art.  I.  Sect.  8,  Cl.  18,  as  war  measures,  essential  to  save  the 
country  from  destruction,  do  not  depend  upon  the  construction 
given  to  the  disputed  clause  above  cited. 

It  will  also  be  observed,  that  a  distinction  is  pointed  out  in 
these  pages  between  the  legislative  powers  of  Congress,  in  time 
of  peace,  and  in  time  of  war.  Whenever  the  words  "  the  common 
defence"  are  used,  they  are  intended  to  refer  to  a  time,  not  of  con- 
structive  war,  but  of  actual  open  hostility,  which  requires  the 
nation  to  exert  its  naval  and  military  powers  in  self-defence,  to 
save  the  government  and  the  country  from  destruction. 

The  Introduction,  and  Chapters  I.  and  VIII.,  should  be  read  in 
connection,  as  they  relate  to  the  same  subject;  and  the  reader  will 
bear  in  mind  that,  in  treating  of  the  powers  of  Congress  in  the 
first  chapter,  it  is  not  asserted  that  Congress  have,  without  any 
public  necessity  justifying  it,  the  right  to  appropriate  private  prop 
erty  of  any  kind  to  public  use.  There  must  always  be  a  justifia 
ble  cause  for  the  exercise  of  every  delegated  power  of  legislation. 


PREFACE.  Vll 

It  is  not  maintained  in  these  pages  that  Congress,  in  time  of 
peace,  has  the  right  to  abolish  slavery  in  the  States,  by  passing 
laws  rendering  the  holding  of  any  slaves  therein  illegal,  so  long  as 
slavery  is  merely  a  household  or  family,  or  domestic  institution  • 
and  so  long  as  its  existence  and  operation  are  confined  to  the 
States  where  it  is  found,  and  concern  exclusively  the  domestic 
aifairs  of  the  Slave  States ;  and  so  long  as  it  does  not  conflict 
with  or  affect  the  rights,  interests,  duties,  or  obligations  which 
appertain  to  the  affairs  of  the  nation,  nor  impede  the  execution 
of  the  laws  and  constitution  of  the  United  States,  nor  con 
flict  with  the  rights  of  citizens  under  them.  Yet  cases  might 
arise  in  which,  in  time  of  peace,  the  abolishment  of  slavery 
might  be  necessary,  and  therefore  would  be  lawful,  in  order  to 
enable  Congress  to  carry  into  effect  some  of  the  express  pro 
visions  of  the  constitution,  as  for  example,  that  contained  in  Art. 
IV.  Sect.  4,  Cl.  1,  in  which  the  United  States  guarantee  to  every 
State  in  this  Union  a  republican  form  of  government ;  or  that 
contained  in  Art.  IV.  Sect.  2,  Cl.  1,  which  provides  that  citizens 
of  each  State  shall  be  entitled  to  all  the  privileges  and  immuni 
ties  of  citizens  in  the  several  States. 

It  is  asserted  in  this  essay  that,  when  the  institution  of  slavery 
no  longer  concerns  only  the  household  or  family,  and  no  longer 
continues  to  be  a  matter  exclusively  appertaining  to  the  domestic 
affairs  of  the  State  in  which  it  exists ;  when  it  becomes  a  potent, 
operative,  and  efficient  instrument  for  carrying  on  war  against  the 
Union,  and  an  important  aid  to  the  public  enemy;  when  it 
opposes  the  national  military  powers  now  involved  in  a  gigan 
tic  rebellion;  when  slavery  has  been  developed  into  a  vast, 
an  overwhelming  war  poioer,  which  is  actually  used  by  armed 
traitors  for  the  overthrow  of  government  and  of  the  constitu 
tion  ;  when  it  has  become  the  origin  of  civil  war,  and  the 
means  by  which  hostilities  are  maintained  in  the  deadly  struggle 
of  the  Union  for  its  own  existence;  when  a  local  institution 
is  perverted  so  as  to  compel  three  millions  of  loyal  colored  sub- 


Vlll  PREFACE. 

jects  to  become  belligerent  traitors  because  they  are  held  as 
slaves  of  disloyal  masters, — then  indeed  slavery  has  become  an 
affair  most  deeply  affecting  the  national  welfare  and  common 
defence,  and  has  subjected  itself  to  the  severest  enforcement  of 
those  legislative  and  military  powers,  to  which  alone,  under 
the  constitution,  the  people  must  look  to  save  themselves 
from  ruin.  In  the  last  extremity  of  our  contest,  the  ques 
tion  must  be  decided  whether  slavery  shall  be  rooted  up 
and  extirpated,  or  our  beloved  country  be  torn  asunder  and 
given  up  to  our  conquerors,  our  Union  destroyed,  and  our  people 
dishonored?  Are  any  rights  of  property,  or  any  claims,  which 
one  person  can  assume  to  have  over  another,  by  whatever  local 
law  they  may  be  sanctioned,  to  be  held,  by  any  just  construction  of 
the  constitution,  as  superior  to  the  nation's  right  of  self-defence  ? 
And  can  the  local  usage  or  law  of  any  section  of  this  country 
override  and  break  down  the  obligation  of  the  people  to  maintain 
and  perpetuate  their  own  government  ?  Slavery  is  no  longer 
local  or  domestic  after  it  has  become  an  engine  of  war.  The 
country  demands,  at  the  hands  of  Congress  and  of  the  President, 
the  exercise  of  every  power  they  can  lawfully  put  forth  for  its 
destruction,  not  as  an  object  of  the  war,  but  as  a  means  of  termi 
nating  the  rebellion,  if  by  destroying  slavery  the  republic  may  be 
saved.  These  considerations  and  others  have  led  the  author  to 
the  conclusion  stated  in  the  following  pages,  "that  Congress 
has  the  right  to  abolish  slavery,  when  in  time  of  war  its  abolish 
ment  is  necessary  to  aid  the  commander-in-chief  in  maintaining 
the  '•common  defence?"  ™-  ^ 

BOSTON,  November  20,  1862. 

Note  to  Tenth  Edition.  —  The  reader  ia  referred  to  the  Preface,  pages  v.  and  vi.,  for 
remarks  upon  the  Constitution  (Art.  I.  Sect.  8,  clause  1)  relating  to  the  alleged  power  of 
Congress  "  to  provide  for  the  general  welfare  and  common  defence;  "  and,  in  addition  to 
the  authorities  there  cited,  reference  may  be  had  to  the  speeches  of  Patrick  Henry,  who 
fully  sustains  the  views  of  Mr.  Jefferson.  See  also  Story  on  the  Constitution,  Sect.  1286. 

*  See  Note  to  Forty-third  Edition,  on  "  Slavery,"  p.  ;J93.    Also,  Appendix. 


WAR    POWERS. 
PREFACE  TO   THE  FORTY-THIRD   EDITION. 


OF  previous  editions  of  this  work,  thirty-two  have  been  pub 
lished  in  New  York,  and  ten  in  Boston.  In  1864  the  Essays  on 
"  Military  Arrests,"  "  Reconstruction,"  and  "  Military  Govern 
ment"  were  reprinted  in  one  volume  with  the  "War  Powers,"  as 
they  treated  of  kindred  subjects,  and  were  intended  to  illustrate 
and  apply  to  our  national  affairs  the  principles  of  constitutional 
law  advocated  in  the  earliest  of  these  publications.  A  brief  Essay 
has  been  added  on  "  Claims  against  the  United  States  to  Com 
pensation  for  injuries  inflicted  by  our  military  or  naval  forces 
upon  aliens  who  came  into  or  resided  in  this  country  during  the 
rebellion."  It  was  originally  prepared  in  its  present  form,  at  the 
request  of  the  Secretary  of  the  State  Department,  and  was  sub 
sequently  (1866)  printed.  Since  that  time  it  has  been  used  in 
the  War,  State,  and  Navy  Departments.  New  notes  have  been 
added  for  the  purpose  of  giving  the  reader  convenient  reference 
to  some  of  the  proceedings  of  those  departments  relating  to  the 
war  powers  treated  of  in  this  work. 

Several  recent  acts  of  Congress,  decisions  of  the  departments, 
and  opinions,  judgments,  or  official  acts  of  officers  and  courts  of 
of  the  United  States  are  also  cited  or  referred  to  in  the  Notes  or 
printed  in  the  Appendix  to  this  edition,  marking  our  progress  in 
military  jurisprudence,  or  limiting,  defining,  and  establishing  the 
war  powers  of  the  government. 


PREFACE    TO    THE    FORTY-THIRD    EDITION. 

This  comparatively  novel  and  important  branch  of  public  law, 
developed  in  our  recent  civil  war,  ought  not  to  be  overlooked  by 
jurists  or  statesmen.  It  should  be  made  a  subject  of  special  in 
struction  in  schools  for  the  education  of  lawyers.  The  neglect 
of  it  has  proved  a  national  calamity.  If  southern  rebels,  with 
all  their  treasonable  notions  on  the  subject  of  State  rights,  had 
recognized  and  appreciated  the  war  powers  of  the  Union,  it  is 
not  probable  that  they  would  have  attempted  armed  rebellion. 
Had  the  loyal  people  of  the  country  and  the  administration 
promptly  assumed  and  with  energy  employed  those  powers,  trea 
son  might  have  been  strangled  at  its  birth;  and  if  the  judicial 
department,  unbiassed  by  political  proclivities  of  individual  judges, 
shall  ultimately  sanction  a  liberal  and  statesman-like  construction 
of  the  sovereign  and  belligerent  rights  of  the  people  under  our 
Constitution,  it  will,  by  so  doing,  strengthen  the  power  of  our 
government  to  defend  itself  against  rebellion ;  it  will  increase  our 
confidence  in  the  stability  of  the  republic,  and  it  will  become  a 
new  safeguard  against  the  dangers  of  civil  war. 

To  maintain  the  right  of  the  majority  to  govern,  to  guard 
against  future  attempts  at  rebellion,  to  secure  the  supremacy  of 
republican  institutions  in  all  parts  of  a  country  which  contains  so 
large  a  foreign  population,  and  includes  so  vast  a  territory  as 
ours,  liable  as  it  is  to  be  disturbed  by  sectional  jealousies  and 
interests,  the  people  must,  hereafter,  be  always  prepared  to  use 
promptly,  when  the  occasion  imperatively  demands  it,  the  war 
powers  of  their  government.  They  must,  therefore,  not  forget 
them  in  time  of  peace.  Our  recent  civil  war  has,  unfortunately, 
forced  us  to  become  familiar  with  them,  and  to  recognize  them  as 
the  only  means  by  which  the  right  to  continue  our  existence  as  a 
nation  under  constitutional  government  may,  and  in  the  last  re 
sort  must,  be  defended.  By  them  the  overthrow  of  rebel  gov 
ernments,  the  return  of  public  enemies  to  the  Union,  the  restora 
tion  of  disloyal  States,  have  been  effected  and  controlled.  By 


PREFACE   TO    THE   FORTY-THIRD    EDITION.  xl 

them  the  civil  and  political  rights  of  eleven  millions  of  our  citizens 
have  been  regulated  and  established.  Upon  them  the  basis  of  the 
reconstructed  Union  stands.  Yet  every  civil,  judicial,  or  military 
act  of  the  government  which  rests  for  justification  upon  the  con 
stitutional  validity  of  the  war  power,  will  probably  continue  to  be 
a  subject  of  discussion  for  years  to  come  —  so  long  as  the  present 
generation  of  secessionists  shall  last.  They  have  everything  to 
gain,  and  nothing  to  lose,  by  repudiating  the  power  which  has 
conquered  them.  Though  compelled  to  lay  down  their  arms, 
they  may  continue  their  efforts  to  destroy  the  Union.  Hence  the 
vindication  of  the  rights  of  the  people  against  their  enemies  is 
still  one  of  the  duties  of  patriotic  citizens,  and  is  the  only  means 
of  securing  to  our  posterity  the  inestimable  benefits  derived  from 
our  civil  war.  For  these  reasons,  lawyers,  judges,  statesmen,  and 
the  people  of  the  United  States  ought  never  to  lose  sight  of  the 
war  powers  of  the  government  under  our  Constitution. 

W.  W. 

BOSTON,  November  10,  1870. 


CONTENTS. 


WAR  POWERS. 


PREFACE  TO  THE  SECOND  EDITION. iii 

Distinction  between  emancipating  slaves  and  abolishing  slavery.  .  iii 
President's  Proclamation  and  the  emancipation  acts,  their  effect  on 

slavery.           ........•••  iv 

Powers  not  delegated  by  the  Constitution  are  reserved.  v 

Powers  conferred  by  the  Constitution  are  limited  and  defined.  .  .  v 
Power  to  provide  for  the  general  welfare  and  common  defence,  is  not 

relied  upon  in  this  work  as  the  basis  of  claim  for  special  power.  .  v 

When  and  how  slavery  may  be  abolished  by  Congress.  .  .  vi,  vii,  viii 

PREFACE  TO  THE  FORTY-THIRD  EDITION ix 


INTRODUCTION. 

Purpose  for  which  the  Constitution  was  founded 1 

How  the  Constitution  has  been  violated. 

Unexpected  growth  of  slavery. 

The  "  privileged  class."         ......-•• 

Abolition  of  slavery  by  European  governments.       .....       3 

Slavery  in  1862  not  slavery  in  1788 

Are  slaveholders  arbiters  of  peax?e  and  war?    ..... 

Though  hated,  why  slavery  was  tolerated 

Recognition  of  slavery  not  inconsistent  with  the  perpetuity  of  the  republic.       7 
War,  distinction  between  the  objects  and  the  means  of.  7 

Liberal  and  strict  constructionists  of  the  Constitution 

Powers  we  should  expect  to  find  in  the  Constitution. 

The  Constitution  contains  powers  to  make  laws  for  peace  and  laws  for  war. 

Result  if  the  Constitution  denies  the  power  to  save  the  Union. 

Some  leading  questions  under  the  Constitution  stated. 

(xiii) 


XIV  CONTENTS. 


CHAPTER  I. 

The  constitutional  right  of  the  government  to  approprite  private  property 

to  public  use,  either  in  time  of  peace  or  in  time  of  war.     .         .  15 

The  right  is  founded  in  reason.         .....  15 

Indemnity  is  required.            ........  IG 

"  Public  use,"  what  it  is.            ........  17 

All  kinds  of  property,  including  slaves,  may  be  so  appropriated.           .  18 
The  United  States  may  require  all  subjects  to  do  military  duty.       .         .  20 
Will  slaveholders  be  entitled  to  idemnity  if  their  slaves  are  used  for  mil 
itary  purposes  ?  ........  21 

Indemnity  to  Mormons.    .........  22 

Effect  of  naturalization  and  milita  laws  on  the  question  of  indemnity  to 

slave  masters.      .......  22 

Does  the  war  power  of  seizure  supersede  the  civil  power  of  Congress  to 

appropriate  private  property  to  public  use  ? 24 

References  to  the  Constitution,  showing  the  war  powers  of  Congress.  .  25 
Slave  property  subject  to  the  same  liability  as  other  property  to  be  ap 
propriated  for  war  purposes.           ......  26 

Importance  and  danger  of  the   power  conferred   by  the  Constitution. 

Art.  I.,  Sect.  8 27 

Powers  of  the  President  not  in  conflict  with  those  of  Congress.       .         .  27 

When  Congress  has  power  under  the  Constitution  to  abolish  slavery.  .  28 

CHAPTER  II. 

War  powers  of  Congress 34. 

Rules  of  interpretation.          .........  34 

Are  the  United  States  at  war  ? 38 

Declaration  of  war  not  necessary  on  the  part  of  the  government  to  give 

it  full  belligerent  powers.             .......  38 

Has  government  full  war  powers  against  rebel  citizens  ?           ...  40 
Is  "suppressing  rebellion"  by  arms  making  war  on  the  citizens  of  the 

United  States, -in  the  sense  of  the  Constitution?          ...  42 
Rebels  may  be  treated  as  belligerents  and  subjects.            .         .         .         .44 

The  law  of  nations  is  above  the  Constitution 46 

International  belligerent  rights  are  determined  by  the  law  of  nations.    .  47 

Belligerent  right  of  confiscation  of  personal  estate 48 

Prize  courts.     ............  48 

Rights  guaranteed  by  the  Constitution. 48 

Constitutional  guarantees  of  civil  rights  to  citizens  in  time  of  peace  not 

applicable  in  time  of  war.       .                  49 

True  application  of  these  constitutional  guarantees 50 

Civil  rights  of  loyal  citizens  in  loyal  districts  are  modified  by  the  exist 
ence  of  war.            ..........  51 

Whether  belligerents  shall  be  allowed  civil  rights  under  the  Constitution 

depends  upon  the  policy  of  the  government.       ....  53 


CONTENTS.  XV 

The  Constitution  allows  confiscation 64 

Military  government  under  martial  law 56 

Civil  rights  changed  by  martial  law 58 

A  severe  rule  of  belligerent  law 59  > 

Belligerent  right  to  confiscate  enemy's  real  estate 62 


CHAPTER  III. 

War  power  of  the  President  to  emancipate  slaves.        .  66 

Why  the  power  exists.       ..........  66 

The  President  the  sole  judge  how  and  when  to  use  it.  ...  67 

Powers  of  the  President  not  inconsistent  with  powers  of  Congress  to 

emancipate  slaves.  .........  68 

Is  liberation  of  enemy's  slaves  a  belligerent  right?       ....  68 

The  law  of  nations  sanctions  emancipation  of  enemy's  slaves.          .         .  69 

Authority  and  usage  confirm  the  right.       .         .  ....  74 

How  far  the  government  of  the  United  States,  under  former  administra 
tions,  have  sanctioned  the  belligerent  right  of  emancipating  slaves 

of  loyal  and  of  disloyal  citizens 74 

War  powers  of  the  President  —  in  general.  .....  82 


CHAPTER  IV. 

Bills  of  attainder. 84 

Bills  of  attainder  in  England 

Punishment  by  attainder.  .........  84 

Attainders  prohibited  as  inconsistent  with  constitutional  liberty.  .  85 

Bills  of  attainder  abolished 86 

What  is  a  bill  of  attainder.  ........  86 

Bills  of  pains  and  penalties.      .........  87 

Ex  post  facto  laws  prohibited  —  bills  of  pains  and  penalties,  as  well  as 

attainders,  unconstitutional.         .......  88 

Attainders  in  the  Colonies  and  States.       .......  89 

Bills  of  attainder,  how  recognized.         .....••  91 


CHAPTER  V. 

Treason.  

Right  of  Congress  to  declare  by  statute  the  punishment  of  treason,  and 
its  constitutional  limitations.        ....••• 

Ancient  English  doctrine  of  constructive  treason.     .         .         •         •         .95 

Power  of  Congress  to  define  and  punish  treason  limited. 

Attainder  and   ex  post  facto  laws.  ....•««     97 

Treason  defined  by  statute.  .....-•• 

Congress  has  unlimited  power  to  declare  the  punishment  of  treason.        .     99 


XVI  CONTENTS. 

Consequences  of  attainder 100 

Corruption  of  blood 101 

Savage  cruelty  of  English  law.      . 101 

Forfeitures.        ........  .  102 

Characteristics  of  attainders  of  treason 105 

Technical  language,  how  construed.  ...  ...  106 

True  meaning  of  Constitution,  Art.  III.  Sect.  3,  Cl.  2.          ...       108 

If  Congress  can  impose  fines,  why  not  forfeitures?  .         .         .         .109 

Forfeitures  for  treason  not  limited  to  life  estates.  110 


CHAPTER  VI. 

Treason,  statutes  against  it,  how  administered 112 

Confiscation  act  of  1862 113 

Confiscation  act  of  1862  not  a  bill  of  attainder,  not  an  ex  post  facto  law.  lift 


CHAPTER  VII. 

The  right  of  Congress  to  declare  the  punishment  of  crimes  against  the 

United  States  other  than  treason.        .         .         .         .         .         .117 

New  crimes  require  new  penal  laws 117 

All  attempts  to  overturn  governments  should  be  punished.  .  .  .118 
Act  of  1862,  Sect.  6,  does  not  purport  to  punish  treason.  .  .  .119 

Legal  construction  of  the  act  of  1862. 12Q 

The  severity  of  different  punishments  declared 122 

The  sixth  section  of  the  confiscation  act  of  1862  is  not  within  the  prohi 
bition  of  the  Constitution,  Art.  III.  Sect.  1,  Cl.  3.      ...       123 

Treason  and  confiscation  laws  in  1862,  their  practical  operation.      .         .  126 
Legal  rights  of  persons  accused  of  treason.  .....       126 

Will  secessionists  indict  and  convict  each  other?      .....   127 

How  the  juries  are  selected,  and  their  powers 127 

State  rights  and  secession  doctrines  in  the  jury-room.  ....  128 
Laws  are  most  effective  which  require  no  rebel  to  administer  them.  .  129 
Statutes  of  limitation  will  protect  traitors.  ......  130> 


CHAPTER  VIII. 

Constitutional  rights  over  slavery  not  affected  by  party  platforms.        .       131 

Party  platforms  cannot  alter  the  Constitution. 131 

Slavery  considered  as  belonging  to  the  domestic  affairs  of  States  ;  can  gov 
ernment  interfere  with  it?       ........  132 

Domestic  institutions.    ..........       132 

What  they  are,  and  when  they  cease  to  be  so 132 

Slavery  may  be  interfered  with  by  Congress  for  its  protection.      .         .       133 


CONTENTS.  xvii 

Slavery  may  be  interfered  with  by  appropriating  slaves  as  private  property 

to  public  use,  as  shown  in  Chapter  I.            .....  134 

Slavery  may  be  interfered  with  by  operation  of  military  laws.  .         .134 

Slavery  may  be  interfered  with  by  laws  regulating  commerce  between  the 

States 134 

Congress  may  interfere  against  slavery  by  militia  laws 134 

Congress  may  interfere  with  slavery  in  the  States  by  cutting  off  the  sup 
ply  of  slaves  to  such  States.        .......  134 

Congress  may  interfere  by  laws  preventing  commerce  in  slaves  between 

the  States 134 

Slavery  may  be  interfered  with  by  the  power  to  make  treaties.     .         .  135 

Slavery,  question  as  to  indemnity  of  masters.            .....  13G 

Slavery  may  be  interfered  with  by  the  power  to  suppress  insurrection.  137 

Congress  may  interfere  for  suppresson  of  rebellion.          ....  137 

Congress  may  interfere  to  secure  domestic  tranquillity.         .         .         .  138 

Constitution,  authoritative  construction  of.        ......  138 

Right  to  deal  with  slavery  not  to  be  sought  in  party  platforms.     .          .  139 

Opinions  of  the  Supreme  Court  upon  the  Constitution.             .         .         .  139 

Opinions  of  the  framers  of  the  Constitution.          .         .         .         .         .139 

The  Constitution  gives  all  powers  necessary  to  public  welfare  and  com 
mon  defence.           ../.......  140 

NOTES  ON  THE  WAR  POWERS  (Fifth  Edition) 141 

•Opinion  and  dissenting  opinions  of  the  Supreme  Court  of  the  United 

States  in  the  prize  cases.         ........  141 


MILITARY   ARRESTS. 

PREFACE  TO  MILITARY  ARRESTS.          .......       159 

Arrests  in  loyal  States  regarded  with  alarm. 161 

Civil  liberty 161 

Freedom  from  arrests  claimed  for  public  enemies.   .....  162 

Changes  in  our  rights  effected  by  civil  war.  .....       162 

General  war  powers  of  the  President.        .......  163 

Foundation  of  martial  law.  ........       165 

Martial  law,  what  it  is.  .         .         •         .         .         .         .         .         •  165 

The  objects  and  the  necessities  of  war  show  the  proper  limit  of  the  means 

of  war.         .         .         .         .         .  .         .         .         .         •       167 

Powers  and  responsibilities  of  military  commanders.         ....  167 

Limits  to  all  war  powers  by  martial  law.        ......       168 

Arrests  on  suspicion.          ........••  169 

Abuse  of  power  of  arrests.     ........  170 

Safeguards  against  abuse  of  arrests. 170 

c 


XV111  CONTENTS. 

Safeguards  to  civil  liberty 170 

Effects  of  civil  war  on  courts  of  law.        .         .         ...         .         .         .171 

Military  arrests  sanctioned  by  the  Constitution.    .         .         .  171 

Arrests  not  forbidden  by  the  Constitution .   173 

Arrests  without  warrant 174 

Arrests  without  indictment .176 

Officers  making  arrests  not  liable  to  civil  suit  or  criminal  prosecution.  182 
Military  commanders  making  arrests  not  liable  to  civil  suits  or  criminal 

prosecutions Ig2 

Powers  of  military  commanders  may  be  delegated ;  obedience  to  orders 

a  justification.          ........  .  182 

Arbitrary  arrests  not  consistent  with  free  government.  .         .         .       183 

Civil  liberty  inconsistent  with  arbitrary  power 183 

Arbitrary  arrests  distinguished  from  discretionary.        .  .         .       184 

Military  arrests  lawful 135 

On  what  grounds  military  arrests  are  justifiable.  ....       186 

Principles  of  martial  law  distinguished  from  arbitrary  power.  .   187 

War  powers  have  definite  limits 187 

Liability  to  martial  law  not  inconsistent  with  liability  to  civil  process.  .  188 
Civil  war  makes  actions  criminal  which  might  not  be  so  in  time  of  peace.  188 
Civil  war  renders  persons  liable  to  military  as  well  as  civil  tribunals.  .  188 

Necessity  of  military  arrests 188 

Definition  of  military  crimes,  or  crimes  of  war.        ...  .  188 

Double  liability  for  military  crimes,  military  and  civil.  .         .         .188 

Acts  made  military  crimes  by  a  state  of  war 189 

Martial  law  may  punish  acts  which  in  time  of  peace  would  have  been 

innocent.     ..........  189 

Resistance  to  draft  of  military  forces.        .         .         .         .         .         .         .  189 

Arrests  of  innocent  persons.          ......  199 

Arrests  to  prevent  hostilities.  ........  193 

Cause  of  arrest  cannot  always  be  disclosed.  ....  193 

Military  commanders  need  not  always  disclose  cause  of  arrest.        .         .  193 
Prevention  of  military  crimes  is  the  best  use  to  be  made  of  armies.     .       193 
Prevention  of  military  crimes  is  the  object  of  most  military  operations.      193 
Prevention  of  military  crimes  is  the  justification  of  captures  of  property 
and  military  arrests ;  object  for  which  the  President  was  author 
ized,  in  1798,  to  imprison  aliens.          ......       195 

Prevention  of  military  crimes  authorizes  the  call  by  the  President  of  the 

army  and  navy  into  service.  .......  195 

Restraint  of  civil  liberty  by  compulsory  military  duty  exceeds  temporary 

restraint  by  arrest.  .........  195 

Arrests  made  by  all  governments  in  time  of  civil  war.  .         .         .       196 

Necessities  of  civil  war.  197 

Who  ought  and  who  ought  not  to  be  arrested 198 

How  martial  law  is  instituted  or  put  in  force.  202 

Duty  of  military  commanders  in  case  of  service  on  them  of  habeas  corpus.  202 
War  powers  of  the  President  to  suspend  habeas  corpus 202 


CONTENTS.  XIX 

War  powers  of  the  President  to  establish  martial  law.  .         .         .       202 

Constitutionality  of  act  for  enrolling  military  forces 205 

Military  crimes  may  be  committed  by  persons  not  amenable  to  civil  pro 
cess  or  indictment.       .         .         .         •         .         •         •         .         .211 
Military  forces,  indemnity  claimed  by  persons    arrested  by,  when  to  be 

granted  and  when  refused.       .  211 

Instructions  of  the  War  Department  to  military  commanders.      .         .       213 

Military  forces,  how  to  be  treated.  213 

How  judges  violating  certain  laws  of  Congress  during  the  war  were  to 

be  regarded 213 

Order  of  the  War  Department  relating  to  them 213 

Opinion  in  Kees  v.  Governor  Tod 216 


RETURN   OF    REBELLIOUS   STATES   TO   THE 

UNION. 

War  of  arms  and  war  of  ideas.      ........  229 

Dangers  to  be  guarded  against.         ........  230 

Consequences  of  being  outwitted  by  rebels.  .....  232 

State  rights  in  time  of  civil  war 234 

Attitude  of  the  government,  in  the  beginning  of  the  war,  towards  rebels 

and  towards  loyal  men  in  rebel  districts 235 

Character  of  the  war  changed  by  subsequent  events.  .         .         •  235 

Consequences  resulting  from  civil  territorial  war. 

When  the  rebellion  became  civil  territorial  war.  ....  237 

Rights  of  public  enemies  since  the  rebellion  became  a  territorial  civil  war.  238 

Rights  of  rebels  to  be  settled  according  to  the  laws  of  war. 

State  rights  to  be  regained  only  by  our  consent.        .....  244 

State  rights  not  appurtenant  to  land 

Forfeiture  not  claimed  —  right  of  secession  not  admitted. 

The  pledge  of  the  cquntry  to  soldiers  and  citizens  must  be  kept  inviolate.  247 

Plan  of  reconstruction  recommended.    .....••  248 

Plan  adopted  by  President  Lincoln  in  his  message  and  proclamation  of 

amnesty.          .......••••  250 


CONTENTS. 


MILITARY   GOVERNMENT   OF   HOSTILE  TER 
RITORY   IN   TIME  OF   WAR. 

PREFACE. 259 

CHAPTER  I. 

War,  its  methods  and  its  objects. •  261 

Government  in  some  form  is  necessary  to  secure  a  conquest.  .         .  201 

Government,  why  it  is  essential  to  secure  a  conquest.  ....  263 

Government,  military,  is  a  mild  form  of  hostilities.          ....  264 

There  must  be  military  government,  or  no  government.        .         .         .  266 
The  right  to  erect  military  government  is  an  essential  part  of  the  war 

power,  is  founded  in  necessity  and  sanctioned  by  authority.  .         .  267 

Leading  cases  cited 268 

CHAPTER  II. 

The  Constitution  authorizes  the  President  to  establish  military  govern 
ment 269 

Power  not  granted  in  express  terms.     .......       271 

Millitary  government  is  an  act  of  war.      .......  272 

Right  recognized  by  courts,  &c.  .......       273 

Duty  of  the  conqueror  to  govern  those  whom  he  has  subjugated.     .         .  273 

CHAPTER  III. 

Distribution  of  powers  under  military  government.       ....       274 

Different  kinds  of  law  of  war —  martial  law,  military  law,  &c.         .         .  274 
Military  tribunals.  ..........       275 

Power  given  by  the  Constitution  to  Congress  to  establish  courts  mar 
tial,  &c. 276 

Power  of  the  President  to  establish  courts  of  war.        .         .         .         .276 

Do  courts  of  war  exercise  judicial  power?       ......  277 

Would  judicial  courts  be  useful  as  war  courts  ?     .         .         .         .         .       278 

CHAPTER  IV. 

Courts  martial,  legislative  history 279 

Courts  martial,  by  statutes.    .........       279 

Military  courts  of  inquiry.        .........  280 

Military  courts  of  inquiry  established  by  statute  law.  .         .         .       280 

Military  commissions.       ..........  281 


CONTENTS.  XXI 

Military  commissions  under  General  Scott.  .         .  .         .       281 

Military  commissions  under  our  statutes.  ......  281 

Similar  courts  instituted  by  President  Lincoln.     ....  283 

Courts  of  civil  jurisdiction  under  military  authority.        ....  284 

General  Sbepley,  General  Butler,  Judge  Peabody,  Sequestration  Com 
mission.       .......*....       284 

Jurisdiction  of  such  courts.       .........  287 

Does  the  Constitution  prohibit  such  procedures  ?  ....       288 

Rebels — what  rights  they  claim.       ........  290 

Rebels  —  what  rights  are  conceded  to  them.  .....       292 

Public  enemies  —  are  the  inhabitants  of  seceded  States  public  enemies  ?  .  293 
The  question  whether  the  inhabitants  of  insurrectionary  States  are  to  be 
deemed  public  enemies  is  determined  by  the  political  departments 
of  our  government,  not  by  the  judiciary.     .....       294 

The  political  departments  of  our  government  have   finally  determined 

that  they  are  public  enemies.  .......  296 

The  President;  and  the  acts  of  the  Executive  on  that  subject.    .         .       296 
Congress  ;  and  the  acts  of  the  legislative  department  on  that  subject.      .  299 
The  judiciary ;  and  the  position  of  the  Supreme  Court,  which  has  adopted 
the  action  of  the  political  departments  as  it  was  bound  by  the  Con 
stitution  to  do.     ..........       304 

CHAPTER  V. 

Delegation  of  authority.  .........  307 

CHAPTER  VI. 

Military  government,  how  created  and  controlled,  and  how  terminated  by 

Congress.  309 

Limits  of  power  —  conflict  between  the  power  of  Congress  and  that  of  the 

President 311 

How  these  governments  may  be  terminated  by  Congress.      .         .         .       312 

When  the  power  of  military  government  will  cease 313 

CHAPTER  VII. 

Resume.         ............       316 

Jurisdiction  of  military  government  established  by  the  Commander-in- 

Chief. 316 

CHAPTER  VIII. 

The  law  administered  by  military  government.        .....     319 

As  to  local  laws  in  conquered  districts,  whether  the  municipal  laws  of 
the  conquered  district  remain  in  force  proprio  vigore  unless  al 
tered,  &c.  .  321 


XX11  CONTENTS. 

What  laws  of  the  invading  country  extend  ipso  vigore  over  the  subju 
gated  district.  .........  321 

The  suppression  of  the  present  rebellion  is  not  the  conquest  of  a  foreign 

country.  .  .  .  .  .  .  .  .  .  .  .3^1 

Distinction  between  alien  and  public  enemy.          .....       321 

President's  Proclamation,  effect  of,  in  hostile  country  not  under  our  con 
trol.  ............  322 

United  States  judicial  courts  may  be  reestablished,  but  are  at  present 

useless  in  the  rebellious  districts.  .....  324 


WAR    CLAIMS. 

PREFACE. 329 

War  claims  against  the  United  States 327-357 

Enemies,  distinction  between  alien  enemy  and  public  enemy.  .  .  331 
Claims  for  indemnity  depend  on  political  status  of  claimant.  .  .331 

Difference  between  loyal  citizens'  and  rebels'  claims  for  indemnity.  .  331 
Aliens  engaged  in  commerce,  or  those  who  come  into  the  belligerent 

country,  when  they  become  enemies.  .         .         .        332,  335,  352 

The  character  of  claims  discussed  in  this  essay.        .....  332 

How  claims  are  affected  by  concession  of  belligerent  rights.          .         .       333 
Claims  for  indemnity  classified.         ........  332 

Division  of  aliens  into  six  classes.          .......       333 

Belligerent  rights  conceded  by  foreign  countries  to  rebels.        .         .    333,  345 
Legal  effect  of  such  concession.  ...  .         .       333, 345 

Aliens  residing  in  this  country  owe  allegiance  to  the  United  States.  .  334 
Jurisdiction  of  civil  courts  of  every  nation  over  aliens  committing  crimes 

within  its  territory.      .........       334 

Aliens  may  be  punished  by  any  nation  for  crimes  committed  within  its 

jurisdiction 334 

Aliens  are  subject  to  the  jurisdiction  of  military  courts  and  to  military 

government.         ..........       334 

Enemies  coming  into  a  belligerent  country  before  or  after  the  war  began.  335 
Subjects  of  belligerents  cannot  transfer  allegiance,  flagrante  bello,  so  as 

to  protect  their  trade.  ........       334 

Confederate  States  alone  liable  for  injuries  to  subjects  of  governments 

who  have  conceded  belligerent  rights  to  them.  .  .  .  333,  345 

General  rules  of  the  law  of  war 334-336 

Foreign  enemies  engaged  in  commerce.  ......  335 

Who  are  enemies  when  two  nations  are  at  war 335 

Enemies,  who  are  subject  to  the  law  of  reprisals.     .....  335 

When  two  nations  are  at  war,  all  members  of  one  nation  are  enemies  of 

all  members  of  the  other  nation.          .......      335 


CONTENTS.  xxiii 

Lord  Palmerston's  opinion  as  to  liability  of  the  United  States  for  damage 

in  bombarding  Greytown.    ........       336 

Opinion  of,  as  to  claims  under  the  law  of  nations  for  damage  in  bombard 
ing  Uleaborg. 336 

Opinion  of,  as  to  claims  for  damage  done  in  bombarding  Copenhagen.         336 
Injuries  suffered  in  bombardment  of  Greytown.    .....       336 

Attorney  General's  opinion  relating  to  the  bombardment  of  Greytown.       336 
Claims  of  aliens  residing  within  the  arena  of  war.    .....  336 

Alien  enemies  participating  in  hostilities  against  the  United  States.      .       337 
Indemnity  not  allowed  to  aliens  in  hostility  against  the  United  States.    337,  338 
Domiciled  aliens  liable  to  reprisals.  .......  337 

Travellers  not  liable  to  reprisals.  .......       337 

Rights  and  liabilities  of  aliens  who  join  in  active  hostilities  against  the 

United  States.         ..........  338 

Aliens  who  have  voluntarily  enlisted  in  the  service  of  the  United  States.    338 
Status  of  non-naturalized  aliens  resident  in  the  United  States  in  case  of 

war  with  their  native  country.         .......  338 

Naturalization,  its  effect  on  the  rights  and  liabilities  of  aliens.     .         .       338 
Aliens  naturalized  under  the  laws  of  the  United  States.  .         .         .  338 

Neutral  non-naturalized  aliens  who  have  exercised  the  franchise  of  citi 
zens  in  the  United  States  liable  to  do  military  duty.  .         .       339 
Degree  of  protection  accorded  to  neutral  aliens  domiciled  in  loyal  States.     339 
Neutral  aliens  non-naturalized,  permanently  domiciled  in  rebel  States.       339 
When  aliens  are  subject  to  military  duty,  and  when  not  so  subject.  .       .  339 
What  class  of  aliens  is  liable  to  military  service  of  the  United  States.        339 
What  class  of  aliens  is  not  liable  to  military  service  of  the  United  States.    339 
Liability  of  aliens  to  military  service  who  have  exercised  the  elective 

or  other  franchise  of  citizenship.          ......       339 

Indemnity  not  allowed  to  aliens  who  have  used  the  elective  franchise.        339 
Indemnity  allowed  in  several  cases.  ....     339,  340,  345,  346 

Treaties  modifying  the  law  of  nations. 340-352 

Citizens  of  the  United  States,  when  indemnity  is  paid  to  them  for  proper 
ty  appropriated.       .         .         .         .         .         .         .         .  .  340 

When  indemnity  is  not  allowed  to  citizens  of  the  United  States  for  proper 
ty  destroyed 340 

When  indemnity  is  allowed  to  neutral  aliens,  domiciled  in  loyal  States, 

for  property  appropriated 340 

Indemnity  for  property  destroyed,  when  allowed.  ....       340 

Exceptions  to  right  of  withdrawal  of  travellers 340 

Domicile  necessary  to  be  determined  in  all  cases.         ....       341 

Rule  for  determining  domicile. 341 

Domicile,  constructive  or  mercantile.. 342 

Domicile,  distinction  between  personal  and  commercial.  .         .         .  342 

Citizens  of  the  United  States  become  alien  enemies  in  respect  to  prop 
erty  and  capacity  to  sue  if  permanently  residing  in  hostile  country.    342 
Exception  to  this  rule  in  favor  of  certain  citizens  of  the  United  States.      342 


XXIV  CONTENTS. 

Enemies,  all  de  facto  subjects  of  the  enemy  sovereign.  .  .  .  342 
Enemies,  all  permanent  residents  in  the  enemy's  country.  .  ...  342 
Enemies,  all  neutral  aliens  domiciled  in  rebel  States  before  the  war,  who 

did  not  withdraw 342 

Proclamations  and  laws  relating  to  alien  enemies.    .....  343 

Aliens   declared   subject   to   non-intercourse  acts   by  proclamation  and 

statutes.       ...........       343 

Neutral  aliens  non-naturalized,  domiciled  in  rebel  States  before  the  war, 
and  not  withdrawing  themselves   and    their  property,  are  alien 
enemies.  ..........    343-352 

Proclamations  and  laws  sanctioned  by  the  laws  of  war.          .         .         .       344 

Travellers  or  aliens  having  no  domicile  in  the  United  States.  .         .         .  345 

The  rights  and  liabilities  of  travellers. 345 

The  claims  of  travellers  if  prevented  from  withdrawing.  ....  345 

Eight  of  withdrawal  of  travellers. 345 

Withdrawal  of  non-domiciled  aliens. 345 

Aliens  if  prevented  by  the  United  States,  or  those  acting  under  its  au 
thority,  from  withdrawing.  .......       345 

Aliens,  travellers,  or  those  making  temporary  sojourn  here.    .         .         .  345 

Neutral  aliens  non-naturalized,  having  temporary  domicile  in  rebel  States, 

and  remaining  there  during  the  war.       ....    345,  346,  347 

Aliens  having  mercantile  domicile  in  the  rebel  States.  .         .         .       346 

How  the  right  of  withdrawal  may  be  lost.          ......  346 

How  right  of  non-domiciled  aliens  or  travellers  to  indemnity  is  lost.     .       346 
Domicile  does  not  determine  character  of  property.        ....  346 

Domicile  in  neutral  country  does  not  protect  trade  in  an  enemy's  country.  346 
Domicile  determines  national  character  of  person.        ....       346 

Aliens  who  withdrew  from  rebel  jurisdiction.    ......  347 

Naturalization  does  not  protect  property  of  one,  who,  by  returning  to  his 

native  country,  regains  his  citizenship.        .....       347 

AJ1  property  belonging  to  a  house  of  trade  established  in  the  enemy's 

country,  enemy's  property.  .......  347 

Enemy's  property  even  if  some  of  the  owners  are  loyal  citizens  of  the 

United  States  resident  in  loyal  States.          .....       348 

Belligerent  rights  of  the  United  States  against  property  of  alien  mer 
chant,  how  determined.  . 348 

All  property  of  consuls  engaged  in  commerce  with  the  enemy,  enemy's 

property 348 

Enemy's  property  —  its  character  is  stamped  upon  it  if  in  the  place  where 

trade  is  carried  on  is  hostile.  .......  349 

Neutral  aliens,  whether  domiciled  here  or  not,  not  having  exercised  any 

of  the  franchises  of  citizenship,  may  withdraw.  .         .         .       349 

Aliens  owning  plantation  in  enemy's  country  cannot  withdraw  its  pro 
duce.  ..." 349,350 

Aliens,  though  neutral,  if  they  do  not  withdraw,  but  remain  subjects  de 
facto  of  a  hostile  government,  their  property  is  liable  to  be  treated 
as  that  of  an  alien  enemy. 349-352 


CONTENTS.  XXV 

Opinions  of  Sir  William  Scott  and  of  the  Supreme  Court  of  the  United 

Sjtates  on  the  subject  of  aliens 349 

Eight  of  withdrawal  of  neutral  aliens.  .  ....       349 

Exceptions  to  the  right  of  withdrawal 349 

Belligerent  rights,  as  against  neutral  aliens,  following  from  the  status  of 

the  inhabitants  of  rebel  States  —  as  public  enemies.  .         .       351 

When  citizens  of  the  United  States  were  declared  by  law  public  enemies.   351 
Citizens  of  the  United  States  and  aliens  in  rebel  States,  who  remained 

subjects  de  facto  of  rebel  government.  ......  351 

Act  of  Confederate  Congress  declaring  certain  residents  alien  enemies.      351 

Opinion  of  the  Supreme  Court  as  to  public  enemies 351 

Enemy's  property  includes  all  property  of  the  inhabitants  of  the  rebel 
lious  States  during  the  war. 352 

Treaties  with  France.     ..........       352 

Declaration  of  war -against  the  United  States  by  Confederate  Congress.      352 

Eight  of  withdrawal  under  treaties  of  commerce,  etc 352 

Aliens  engaged  in  commerce,  or  those  who  come  into  the  belligerent 

country  —  when  they  become  enemies.        .....       352 

How  aliens  are  affected  by  treaties  of  commerce.      ....    352-354 

Jurisdiction  of  courts  of  war  and  military  government  over  aliens.          .  353 
Arrested  and  imprisoned  aliens  having  given  reasonable  cause  for  belief 

of  their  hostile  purposes.     .......        354,  355 

Indemnity  of  aliens  arrested  or  imprisoned  on  suspicion  of  hostile  in 
tentions. 354,  355 

Test  questions  on  examination  of  claims,  by  the  Departments.     •        356,  357 
Opinions  of  the  Solicitor  of  the  War  Department 357-390 

CONTENTS   ADDED   TO   THE   PEESENT   EDITION. 

Notes 390-512 

Cases  decided  in  the  United  States  Courts 512-610 

Letter  of  Chief  Justice  Chase  to  President  Johnson 595 

Eemarks  of  Chief  Justice  Chase,  at  Ealeigh 596 

War  powers  under  the  Constitution  used  by  the  goverment  in  suppress 
ing  the  rebellion,  and  recognized  by  the  Judicial  Department. 

See  Note  1. 390-392 

Slavery  —  a  sketch  of  the  laws  of  Congress,  the  acts  of  the  Executive, 
and  the  Amendments  of  the  Constitution  by  which  slavery  has  been 
terminated  in  the  United  States,  and  civil  and  political  rights  have 
been  guaranteed  to  all  citizens  without  distinction  of  color,  race, 

or  previous  condition  of  servitude.     Note  2 393-400 

President  Lincoln's  Proclamations  on  the  same  subject.    Note  2.    400-405 
Slaves  in  the  army.     Policy  of  the  government  in  regard  to  compensa 
tion  to  slave-masters.     Note  3 405,  406 

Confiscation.     The  views  of  President  Lincoln  on  this  subject,  and  his 

change  of  opinion.     Note  4 407>  409 

d 


XXVI  CONTENTS. 

Laws  of  confiscation  passed  by  the  Confederates,  and  remarks  on,  show 
ing  their  policy,  and  opinions  as  to  the  war  powers  under  their 

Constitution 409-423 

Confederate  act  respecting  alien  enemies.          ......  409 

Confederate  sequestration  act.       .         .         .         .         .    f    .         .         .411 

Confederate  act  in  relation  to  property  which  was  or  might  be  liable  to 

sequestration  as  belonging  to  alien  enemies.  ....  417 

A  further  act  on  the  same  subject.         .......       418 

Remarks  on  these  acts 424 

Note  on  the  constitutionality  of  our  confiscation  act.     ....       425 
On  belligerents  —  "  whether  they  should  be  allowed  civil  rights  depends 

on  the  policy  of  the  government."     Note  5.  .         .         .         .     425-427 
On  reconstruction,  military  and  provisional  governments,  sketch  of  the 
history  of,  during  and  since  the  rebellion,  and  of  the  most  impor 
tant  acts  of  Congress  relating  thereto.     Note  6.  .         .       427-451 

Freedmen's  Bureau  act »       .         .         .         .  428 

Act  extending  the  same.         .........       430 

Reconstruction  act,  "for  the  more  efficient  government   of  the  rebel 

States." 434 

Supplemental  act  for  the  same  purpose.         ......       436 

Further  supplemental  act  for  the  same  purpose.        .....  439 

The  three  classes  of  provisional  governments.      .....       442 

Sketch  of  facts  which  led  to  the  passage  of  the  reconstruction  acts.  .  442 

What  has  been  accomplished  by  them. 445 

Act  of  Congress  confirming  the  doings  of  military  courts.       .         .         .  446 

Confederate  laws  establishing  military  courts.      .         .         .         347,  449,  451 

Confederate  joint  resolutions  on  retaliation.      ......  449 

Confederate  act  to  repress  the  importation  of  Confederate  treasury  notes 

by  the  enemies  of  the  Confederacy.     ......       449 

Outline  of  the  judicial  history  of  the  right  of  capture  of  enemy's  proper 
ty,  as  recognized  by  the  courts  of  the  United  States,  and  the  meas 
ures  of  Congress  on  this  subject.     Note  7.     .         .         .         .     451-455 

Note  on  the  war  powers  used  by  the  Confederates,  and  their  interpreta 
tion  thereof 455-459 

Confederate  act  recognizing  war  with  the  United  States.          .         .     455-459 
Legal  effect  of  Confederate  act  recognizing  war  with  the  United  States.    459 
Note  on  the  distinction  between  capture  and  prize.       ....       459 
Military  commissions,  as  regarded  by  the  Supreme  Court,  and  by  Con 
gress.     Note  8 460-463 

Remarks  on  Milligan's  case.  .         .         .         .         .         .         .         460-463 

The  Emancipation  Bureau.      Correspondence  with  Hon.  T.  D.  Eliot. 

Note  9 464-466 

Letter  to  Hon.  E.  B.  Washburn,  relating  to  claims  against  the  govern 
ment.     Note  10 467 

Correspondence  with  Hon.  G.  W.  Julian,  as  to  the  true  policy  of  the 

government  with  reference  to  confiscated  lands.     Note  11.         469-478 


CONTENTS.  XXVli 

Outline  of  the  history  of  tjie  laws  of  Congress  for  raising  and  organizing 
our  military  forces,  including  the  laws  for  introducing  'persons  of 
African  descent  into  the  volunteer  service,  and  for  equalizing  their 
pay  with  that  of  white  soldiers.  Note  12 478-511 

The  debates  in  Congress  in  relation  to  the  same  subject.      .         .         493-508 

IKDEX.  .611 


CASES   DECIDED   IN   THE  U.  S.   COURTS 

RELATING   TO    SUBJECTS   DISCUSSED   IN  THIS   WORK. 

Rhode  Island  v.  Massachusetts,  12  Peters,  651 530 

Fleming  v.  Page,  9  Howard,  614 512 

Cross  v.  Harrison,  16  Howard,  189 516 

Jecker  v.  Montgomery,  18  Howard,  112.  ......  519 

Dynes  v.  Hoover,  20  Howard,  79.          .      ' 520 

Leitensdorfer  v.  Webb,  20  Howard,  177 522 

Ex  parte  Vallandigham.         .........  524 

Cherokee  Nation  v.  Georgia,  as  stated  in  6  Wallace,  73.  ...  529 

United  States  v.  Moreno,  1  Wallace,  400 531 

The  Circassian,  2  Wallace,  150 531 

The  Venice,  2  Wallace,  274 532 

Mrs.  Alexander's  Cotton,  2  Wallace,  417 532 

Ex  parte  Milligan,  4  Wallace,  106 536 

Ex  parte  Milligan  (remarks  on).        ........  460 

Cummings  v.  Missouri,  4  Wallace,  316.          ......  556 

Ex  parte  Garland,  4  Wallace,  374 565 

Mississippi  v.  Johnson,  4  Wallace,  497.         ......  579 

The  Peterhoff,  5  Wallace,  60 582 

The  Gray  Jacket,  5  Wallace,  369 582 

The  William  Bagaley,  5  Wallace,  402 583 

Mauran  v.  Insurance  Company,  6  Wallace,  14.     .         .         .         .         .  587 

Georgia  v.  Stanton,  6  Wallace,  63.        ..  588 

Coolidge  v.  Guthrie.       .         .         . 591 

The  Grapeshot,  7  Wallace,  563 598 

State  of  Texas  v.  White,  7  Wallace,  702 598 

The  Grapeshot,  9  Wallace,  131 601 

United  States  v.  Anderson,  9  Wallace,  64 603 

United  States  v.  Keehler,  9  Wallace,  86. 607 

Hickman  v.  Jones,  9  Wallace,  196 608 

Bigelow  v.  Forrest,  9  Wallace,  339 610 

See  also  Kees  v.  Tod,  C.  C.  P.,  Ohio 216 

Remarks  of  Chief  Justice  Chase.  595 


XXV111  CONTENTS. 


CASES  IN   THE  WAK  DEPAKTMENT. 

No.     36.     Harsbcrg  and  Steifel,  April  20,  1863 358 

55.     J.  W.  Seaver,  March  6,  1803 358 

88.     A.  Kernahan 359 

95.     W.  &  C.  K.  Herrick,  April  18,  1863 359 

117.     H.  H.  Thompson,  April  24,  1863 360 

195.     Wy lie  &  Co.,  Liverpool,  May  28,  1863 362 

332.     Mrs.  Eugenia  Bass 363 

357.     Captain  Sherwin,  July  1,  1863 365 

361.  French  residents  at  New  Orleans,  December  5,  1863.  .       364 

362.  Theodore  Moreau,  December  3,  1863 368 

369.  Simon  Queyrouse,  December  5,  1863.          ....       369 

467.  Soldiers  who  had  shot  deserters,  March  12,  1864.            .         .  375 

410.  As  to  non-enrolment  of  slaves  in  slave  States  not  declared  in 

rebellion,  December  31,  1863 371 

433.  Alienage 374 

448.  Alienage 374 

487.  W.  W.  Cones,  October  1,  1864 .  378 

518.  Draft  of  Bill  as  to  alien  claims,  April  18,  1864.  .  .  .379 

522.  As  to  non-liability  of  navy  agents  to  trial  by  courts  martial, 

April  22,  1864 380 

531.  Capture,  May  4,  1864 381 

535.  Claim  for  restoration  of  captured  cotton,  August  5,  1864.  .  382 

707.  Timothy  Dowling  (British),  July  25,  1864 383 

713.  As  to  oath  required  of  aliens,  July  26,  1864 384 

714.  Roniain  Dupre,  July  28,  1864 384 

723.  As  to  General  Banks's  order  respecting  gold  at  New  Orleans, 

July  28,  1864 385 

730.  Benjamin  Adams,  July  26,  1864 386 

731.  Antoine  Carre,  December  12,  1864 387 

935.  George  Cameron,  November  11,  1864.          ....       388 

951.     Cowen  &  Dickinson,  December  12,  1864 389 

1437.     Tracy  Irwin  &  Co 389 


OFTH£ 

UNIVERSITY 


SLAVERY 


UNDER 


THE    CONSTITUTION 


INTRODUCTORY    CHAPTER. 

THE  CONSTITUTION. 

THE  Constitution  of  the  United  States  was  ordained 
and  established  by  the  people,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tran 
quillity,  provide  for  the  common  defence,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to 
themselves  and  their  posterity. 

HOW  IT  HAS   BEEN    VIOLATED. 

A  handful  of  slave-masters  have  broken  up  that  Union, 
have  overthrown  justice,  and  have  destroyed  domestic 
tranquillity.  Instead  of  contributing  to  the  common 
defence  and  public  welfare,  or  securing  the  blessings 
of  liberty  to  themselves  and  their  posterity,  they  have 
waged  war  upon  their  country,  and  have  attempted  to 
establish,  over  the  ruins  of  the  Republic,  an  aristocratic 
government  founded  upon  Slavery. 

1 


Z  SLAVERY    UNDER    THE    CONSTITUTION. 

THE  "PECULIAR  INSTITUTION." 

It  is  the  conviction  of  many  thoughtful  persons  that 
slavery  has  now  become  practically  irreconcilable  with 
republican  institutions,  and  that  it  constitutes,  at  the 
present  time,  the  chief  obstacle  to  the  restoration  of 
the  Union.  They  know  that  slavery  can  triumph  only 
by  overthrowing  the  republic ;  they  believe  that  the 
republic  can  triumph  only  by  overthrowing  slavery. 

THE    PRIVILEGED  CLASS. 

Slaveholding  communities  constitute  the  only  privi 
leged  class  of  persons  who  have  been  admitted  into  the 
Union.  They  alone  have  the  right  to  vote  for  what 
they  claim  to  hold  as  property,  while  in  the  free  States 
citizens  vote  only  for  themselves.  The  former  are 
allowed  to  count,  as  part  of  their  representative  num 
bers,  three  fifths  of  all  slaves.  If  this  privilege,  which 
was  accorded  only  to  the  original  States,  had  not  been 
extended  (contrary,  as  many  jurists  contend,  to  the 
true  intent  and  meaning  of  the  constitution)  so  as  to 
include  other  States  subsequently  formed,  the  stability 
of  government  would  not  have  been  seriously  endan 
gered  by  the  temporary  toleration  of  this  "  institution," 
although  it  was  inconsistent  with  the  principles  which 
that  instrument  embodied,  and  revolting  to  the  senti 
ments  cherished  by  a  people  who  had  issued  to  the 
world  the  Declaration  of  Independence,  and  had  fought 
through  the  revolutionary  war  to  vindicate  and  main 
tain  the  rights  of  man. 

UNEXPECTED   GROWTH   OF  SLAVERY. 

The  system  of  involuntary  servitude,  which  had 
received,  as  it  merited,  the  general  condemnation  of 


SLAVERY    UNDER    THE    CONSTITUTION.  3 

leading  southern  and  northern  statesmen  of  this  coun 
try,  who  were  most  familiar  with  its  evils,  and  of  all 
fair-minded  persons  throughout  the  world,  seemed,  at 
the  time  wrhen  our  government  was  founded,  about  to 
vanish  and  disappear  from  this  continent,  when  the 
spinning  jenny  of  Crompton,  the  loom  of  Wyatt,  the 
cotton  gin  of  Whitney,  and  the  manufacturing  capital 
of  England,  combined  to  create  a  new  and  unlimited 
demand  for  that  which  is  now  the  chief  product  of 
southern  agriculture.  Suddenly,  as  if  by  magic,  the 
smouldering  embers  of  slavery  were  rekindled,  and  its 
flames,  like  autumnal  fires  upon  the  prairies,  having 
swept  over  and  desolated  the  Southern  States,  now 
threaten  to  destroy  the  free  States  of  the  North. 
Hence  we  are  called  on  to  encounter  dangers  and 
meet  emergencies  not  anticipated  by  the  founders  of 
our  government. 

SLAVERY  ABOLISHED  BY   EUROPEAN   NATIONS. 

In  other  countries  the  scene  has  been  reversed. 
France,  with  unselfish  patriotism,  renounced  slavery  in 
1794 ;  and  though  Napoleon  afterwards  reestablished 
servitude  in  most  of  the  colonies,  it  was  finally  abolished 
in  1848.  England  has  merited  and  received  her  high 
est  tribute  of  honor  from  the  enlightened  nations  of  the 
world  for  that  great  act  of  Parliament,  in  1833,  whereby 
she  proclaimed  universal  emancipation.  In  1844  King 
Oscar  informed  the  Swedish  states  of  his  desire  to  do 
away  with  involuntary  servitude  in  his  dominions  ; 
in  1846  the  legislature  provided  pecuniary  means 
for  carrying  that  measure  into  effect ;  and  now 
all  the  slaves  have  become  freemen.  Charles  VIIL, 
King  of  Denmark,  celebrated  the  anniversary  of 


SLAVERY    UNDER    THE    CONSTITUTION. 

the  birth  of  the  Queen  Dowager  by  abolishing 
slavery  in  his  dependencies,  on  the  28th  of  July, 
1847.  Within  the  present  year  (1862)  the  Emperor 
of  Russia  has  consummated  the  last  and  grandest  act 
of  emancipation  in  modern  times.*  While  Europe  has 
thus  adopted  and  approved  the  leading  principle  of 
our  constitution,  as  founded  on  justice,  and  as  essential 
to  public  welfare,  the  United  States  have  practically 
repudiated  and  abandoned  it.  Europe,  embarrassed  by 
conservative  and  monarchical  institutions,  accepts  the 
preamble  to  that  instrument,  as  a  just  exposition  of  the 
true  objects  for  which  governments  should  be  estab 
lished,  and  accordingly  abolishes  involuntary  servitude, 
while,  in  this  country,  slavery,  having  grown  strong, 
seeks  by  open  rebellion  to  break  up  the  Union,  and 
to  destroy  republican  democracy. 

SLAVERY  IN  1862   NOT  SLAVERY  IN   1788. 

However  harmless  African  bondage  may  have  been 
in  1788,  it  is  now  believed  that  the  slave-masters  of 
the  present  day,  with  few  but  honorable  exceptions, 
cannot,  or  will  not  conduct  themselves  so  as  to  render 
it  longer  possible,  by  peaceable  association  with  them, 
to  preserve  the  Union,  to  establish  justice,  insure 
domestic  tranquillity,  the  general  welfare,  the  common 
defence,  or  the  blessings  of  liberty  to  ourselves  or  our 
posterity.  The  wide-spread  but  secret  conspiracies  of 
traitors  in  the  slave  States  within  the  last  thirty  years, 
their  hatred  of  our  government,  and  determination  to 

*  Note  to  Tenth  Edition.  —  To  the  above  we  may  add  that  Mexico  abolished  slavery, 
and  prohibited  it  in  all  future  time,  by  a  law  passed  soon  after  her  severance  from 
Spain,  and  that  the  Dutch  West  Indies  have  followed  these  examples,  by  emancipating- 
slaves  under  laws  which  went  into  operation  in  July,  1863. 

Note  to  Forty-third  Edition.  —  The  lirst  edict  for  the  gradual  emancipation  of  slaves 
in  Cuba  was  passed  by  the  Cortes  of  Spain,  June  23,  1870,  and  was  communicated  to  the 
Captain  General  of  Cuba,  July  4,  and  proclaimed  to  all  interested  by  Caballero  de  Rodas, 
on  the  28th  of  September,  1870. 


SLAVERY    UNDER   THE    CONSTITUTION.  5 

destroy  it,  their  abhorrence  of  republican  or  democratic 
institutions,  and  their  preference  for  an  "  oligarchy 
with  slavery  for  its  corner  stone,"  have  now  become 
known  to  the  people  of  the  North.  Their  causeless  re 
bellion,  their  seizure  of  the  territory  and  property  of 
the  United  States,  their  siege  of  Washington,  their 
invasion  of  States  which  have  refused  to  join  them,  their 
bitter,  ineradicable,  and  universal  hatred  of  the  people 
of  the  free  States,  who  are  loyal  to  the  government, 
have  produced  a  general  conviction  that  slavery 
(which  alone  has  caused  these  results,  and  by  which 
alone  the  country  has  been  brought  to  the  verge  of 
ruin)  must  itself  be  terminated,  and  that  this  privi 
leged  class  must  be  abolished  ;  otherwise  the  union 
may  be  broken,  the  government  overthrown,  and 
constitutional  liberty  destroyed.  To  secure  domestic 
tranquillity  is  to  make  it  certain  by  controlling 
power.  It  cannot  be  thus  secured  while  a  perpetual 
uncontrollable  cause  of  civil  war  exists.  The  cause, 
the  means,  the  opportunity  of  civil  war  must  be  re 
moved  ;  the  perennial  fountain  of  all  our  national 
woes  must  be  destroyed  ;  otherwise  "  it  will  be  vain  to 
cry,  Peace  !  peace  !  There  is  no  peace."  * 

ARE    SLAVEHOLDERS   ARBITERS  OF  PEACE   AND  WAR  ? 

Is  the  Union  so  organized  that  the  means  of  involv 
ing  the  whole  country  in  ruin  must  be  left  in  the  hands 
of  a  few  irresponsible  men,  to  be  used  at  their  discre 
tion  ?  Must  the  blessing  of  peace  and  good  govern 
ment  be  dependent  upon  the  sovereign  will  and  pleas 
ure  of  a  handful  of  treasonable  and  unprincipled 

*  For  a  brief  reference  to  the  legislative  acts  and  constitutional  amendments  by  which 
this  result  has  been  accomplished,  see  Notes  to  the  Forty-third  Edition,  on  "  Slavery  " 
p.  393. 


0  SLAVERY    UNDER    THE    CONSTITUTION. 

slave-masters?  Has  the  constitution  so  chained  and 
manacled  peaceful  citizens  that  they  cannot  wrench 
the  murderous  knife  from  an  assassin's  grasp,  even 
in  self-defence  ?  If  the  destruction  of  slavery  be 
necessary  to  save  the  country  from  defeat,  dis 
grace,  and  ruin,  and  if  the  constitution,  fairly  inter 
preted,  guarantees  the  perpetuity  of  slavery,  whether 
the  country  is  saved  or  lost,  it  is  time  that  the 
friends  of  the  Union  should  awake,  and  realize 
their  awful  destiny.  If  the  objects  for  which  our 
government  was  founded  can  lawfully  be  secured 
only  so  far  as  they  do  not  interfere  with  the  pre 
tensions  of  slavery,  we  must  admit  that  the  inter 
ests  of  slave-masters  stand  first,  and  the  welfare  of  the 
people  of  the  United  States  stands  last,  under  the 
guarantees  of  the  constitution.  If  the  Union,  the  con 
stitution,  and  the  laws,  like  Laocoon  and  his  sons,  are 
to  be  strangled  and  crushed,  in  order  that  the  unre 
lenting  serpent  may  live  in  triumph,  it  is  time  to 
determine  which  of  them  is  most  worthy  to  be  saved. 
Such  was  not  the  Union  formed  by  our  forefathers. 
Such  is  not  the  Union  the  people  intend  to  preserve. 
They  mean  to  uphold  a  Union,  under  the  constitution, 
interpreted  ~by  common  sense  ;  a  government  able  to  attain 
results  worthy  of  a  great  and  free  people,  and  for  which 
it  was  founded;  a  republic,  representing  the  sovereign 
majesty  of  the  whole  nation,  clothed  with  ample  powers 
to  maintain  its  supremacy  forever.  They  mean  that 
liberty  and  union  shall  be  "  one  and  inseparable." 

WHY  SLAVERY,  THOUGH  HATED,  WAS  PERMITTED. 

It  is  true,  that  indirectly,  and  for  the  purpose  of  a  more 
equal  distribution  of  direct  taxes,  the  founders  of  our 


SLAVERY    UNDER   THE    CONSTITUTION.  7 

government  tolerated,  while  they  condemned  slavery  ; 
but  they  endured  it  because  they  believed  that  it  would 
soon  disappear.  They  even  refused  to  allow  the  char 
ter  of  their  own  liberties  to  be  polluted  by  the  mention 
of  the  word  "  slave."  Having  called  the  world  to  wit 
ness  their  heroic  and  unselfish  sacrifices  for  the  vindica 
tion  of  their  own  inalienable  rights,  they  could  not, 
consistently  with  honor  or  self-respect,  transmit  to  fu 
ture  ages  the  evidence  that  some  of  them  had  trampled 
upon  the  inalienable  rights  of  others. 

RECOGNITION   OF  SLAVERY  NOT    INCONSISTENT  WITH   THE  PERPE 
TUITY   OF    THE  REPUBLIC. 

Though  slavery  was  thus  tolerated  by  being  ignored, 
it  would  dishonor  the  memory  of  those  who  organized 
our  government  to  suppose  that  they  did  not  intend  to 
bestow  upon  it  the  power  to  maintain  its  own  authority 
and  the  right  to  overthrow  slavery,  or  any  other  insti 
tution  which  might  endanger  its  permanence,  or  destroy 
its  usefulness.  We  should  discredit  the  good  sense  of 
our  forefathers,  who  established  a  free  republic,  created 
by  and  for  themselves,  by  denying  that  they  conferred 
upon  it  the  right,  the  duty,  and  the  power  of  self-defence. 
For  self-defence  by  the  government  is  only  maintain 
ing,  through  the  people's  agents,  the  right  of  the  peo 
ple  to  govern  themselves. 

DISTINCTION   BETWEEN   THE  OBJECTS   AND  THE   MEANS   OF  WAR. 

We  are  involved  in  a  war  of  self-defence.  It  is  not 
the  object  and  purpose  of  our  hostilities  to  lay  waste 
lands,  burn  bridges,  break  up  railroads,  sink  ships, 
blockade  harbors,  destroy  commerce,  capture,  im 
prison,  wound,  or  kill  citizens;  to  seize,  appro- 


SLAVERY    UNDER   THE    CONSTITUTION. 

priate,  confiscate,  or  destroy  private  property;  to 
interfere  with  families,  or  domestic  institutions;  to 
remove,  employ,  liberate,  or  arm  slaves ;  to  accumu 
late  national  debt,  impose  new  and  burdensome  taxes ; 
or  to  cause  thousands  of  loyal  citizens  to  be  slain  in 
battle.  But,  as  means  of  carrying  on  the  contest,  it  has  be 
come  necessary  and  lawful  to  lay  waste,  burn,  sink,  de 
stroy,  blockade,  wound,  capture,  and  kill ;  to  accumulate 
debt,  lay  taxes,  and  expose  soldiers  to  the  peril  of  deadly 
combat.  Such  are  the  ordinary  results  and  incidents  of 
war.  If,  in  further  prosecuting  hostilities,  the  liberating, 
employing,  or  arming  of  slaves  shall  be  deemed  con 
venient  for  the  more  certain,  speedy,  and  effectual  over 
throw  of  the  enemy,  the  question  will  arise,  whether 
the  constitution  prohibits  those  measures  as  acts  of 
legitimate  war  against  rebels,  who,  having  abjured  that 
constitution  and  having  openly  in  arms  defied  the  gov 
ernment,  claim  for  themselves  only  the  rights  of  bel 
ligerents. 

It  is  fortunate  for  America  that  securing  the  liberties 
of  a  great  people  by  giving  freedom  to  four  millions  of 
bondmen  would  be  in  accordance  with  the  dictates  of 
justice  and  humanity.  If  the  preservation  of  the  Union 
required  the  enslavement  of  four  millions  of  freemen, 
very  different  considerations  would  be  presented. 

LIBERAL  AND  STRICT   CONSTRUCTIONISTS. 

The  friends  and  defenders  of  the  constitution  of  the 
United  States  of  America,  ever  since  its  ratification, 
have  expressed  widely  different  opinions  respecting  the 
limitation  of  the  powers  of  government  in  time  of 
peace,  no  less  than  in  time  of  war.  Those  who  have 
contended  for  the  most  narrow  and  technical  construe- 


SLAVERY    UNDER   THE    CONSTITUTION.  9 

tion,  not  appreciating  the  spirit  in  which  it  was  framed, 
have  kept  to  the  letter  of  the  text,  and  seemed  unable 
to  regard  it  as  only  a  frame  of  government,  a  plan  in 
outline  for  regulating  the  affairs  of  an  enterprising  and 
progressive  nation.  They  have  supposed  it  incapable 
of  adaptation  to  our  changing  conditions,  as  if  it  were  a 
form  of  clay,  which  the  slightest  jar  would  shatter ;  or 
an  iron  chain,  girdling  a  living  tree,  which  could  have 
no  further  growth  unless  by  bursting  its  rigid  ligature. 
But  sounder  judges  believe  that  it  more  resembles  the 
tree  itself,  native  to  the  soil  that  bore  it,  waxing  strong 
in  sunshine  and  in  storm,  putting  forth  branches,  leaves, 
and  roots,  according  to  the  laws  of  its  own  growth, 
and  flourishing  with  eternal  verdure.  Our  constitution, 
like  that  of  England,  contains  all  that  is  required  to 
adapt  itself  to  the  present  and  future  changes  and 
wants  of  a  free  and  advancing  people.  This  great  na 
tion,  like  a  distant  planet  in  the  solar  system,  may 
sweep  round  a  wide  and  splendid  orbit,  but  it  will  not 
pass  beyond  the  reach  of  its  central  light.  The  sun 
shine  of  constitutional  law  will  illumine  its  pathway  in 
all  its  changing  revolutions.  We  have  not  yet  ap 
proached  the  "  dead  point "  where  the  mould  must  be 
shattered,  the  chain  broken,  the  tree  girdled,  or  the 
sun  shed  darkness  instead  of  light.  By  a  liberal  con 
struction  of  the  constitution,  our  government  has 
passed  through  many  storms  unharmed.  Slaveholding 
States,  other  than  those  whose  inhabitants  originally 
formed  it,  have  found  their  way  into  the  Union? 
notwithstanding  the  guarantee  of  equal  rights  to  all. 
The  territories  of  Florida  and  Louisiana  have  been 
purchased  from  European  powers.  Conquest  has 
added  a  nation  to  our  borders.  The  purchased  and  the 
2 


10  SLAVERY   UNDER    THE    CONSTITUTION. 

conquered  regions  are  now  legally  a  part  of  the  United 
States.  The  admission  of  new  States  containing  a  privi 
leged  class,  the  incorporation  into  our  Union  of  a  for 
eign  people,  are  held  to  be  lawful  and  valid  by  all  the 
courts  of  the  country.  Thus  far  from  the  old  anchor 
age  have  we  sailed  under  the  flag  of  "  public  necessity," 
"  general  welfare,"  or  «  common  defence."  Yet  the  great 
charter  of  our  political  rights  "still  lives;"  and  the 
question  of  to-day  is,  whether  that  instrument,  which 
has  not  prevented  America  from  acquiring  one  country 
by  purchase,  and  another  by  conquest,  will  permit  her 
to  save  herself? 

POWERS   WE   SHOULD  EXPECT   TO   FIND. 

If  the  ground-plan  of  our  government  was  intended 
to  be  more  than  a  temporary  expedient,  — if  it  was  de 
signed,  according  to  the  declaration  of  its  authors,  for  a 
perpetual  Union,  —  then  it  will  doubtless  be  found,  upon 
fair  examination,  to  contain  whatever  is  essential  to 
carry  that  design  into  effect.  Accordingly,  in  addition 
to  provisions  for  adapting  it  to  great  changes  in  the 
situation  and  circumstances  of  the  people  by  amend 
ments,  we  find  that  powers  essential  to  its  own  perpe 
tuity  are  vested  in  the  executive  and  legislative 
departments,  to  be  exercised  according  to  their  discretion^ 
for  the  good  of  the  country  —  powers  which,  however 
dangerous,  must  be  intrusted  to  every  government,  to 
enable  it  to  maintain  its  own  existence,  and  to  protect 
the  rights  of  the  people.  Those  who  founded  a  gov- 
erment  for  themselves  intended  that  it  should  never  be 
overthrown ;  nor  even  altered,  except  by  those  under 
whose  authority  it  was  established.  Therefore  they 
gave  to  the  President,  and  to  Congress,  the  means 


SLAVERY   UNDER   THE    CONSTITUTION.  11 

essential  to  the  preservation  of  the  republic,  but  none 
for  its  dissolution.* 

LAWS  FOR  PEACE,  AND  LAWS   FOR  WAR. 

Times  of  peace  have  required  the  passage  of  numer 
ous  statutes  for  the  protection  and  development  of 
agricultural,  manufacturing,  and  commercial  industry, 
and  for  the  suppression  and  punishment  of  ordinary 
crimes  and  offences.  A  state  of  general  civil  war  in 
the  United  States  is,  happily,  new  and  unfamiliar. 
These  times  have  demanded  new  and  unusual  legis 
lation  to  call  into  action  those  powers  which  the  con 
stitution  provides  for  times  of  war. 

Leaving  behind  us  the  body  of  laws  regulating  the 
rights,  liabilities,  and  duties  of  citizens,  in  time  of  public 
tranquillity,  we  must  now  turn  our  attention  to  the 
RESERVED  and  HITHERTO  UNUSED  powers  contained  in  the 
constitution,  which  enable  Congress  to  pass  a  body  of 
laws  to  regulate  the  rights,  liabilities,  and  duties  of 
citizens  in  time  of  war.  We  must  enter  and  explore 
the  arsenal  and  armory,  with  all  their  engines  of  defence, 
enclosed,  by  our  wise  forefathers  for  the  safety  of  the 
republic,  within  the  old  castle  walls  of  that  constitu 
tion  ;  for  now  the  garrison  is  summoned  to  surrender ; 
and  if  there  be  any  cannon,  it  is  time  to  unlirnber  and 
run  them  out  the  port-holes,  to  fetch  up  the  hot  shot, 
to  light  the  match,  and  'hang  out  our  banners  on  the 
outer  walls.' 

THE  UNION  IS  GONE    FOREVER    IF  THE    CONSTITUTION   DENIES    THE 
POWER  TO  SAVE  IT. 

The  question  whether  republican  constitutional  gov 
ernment  shall  now  cease  in  America,  must  depend  upon 

*  "  The  members  of  the  American  family,"  says  the  Supreme  Court  in  the  case  of  Rhode 
Island  v.  Massachusetts,  "  possess  ample  means  of  defence  under  the  Constitution,  which 
we  hope  ages  to  come  will  verify." 


12          SLAVERY  UNDER  THE  CONSTITUTION. 

the  construction  given  to  these  hitherto  unused  powers. 
Those  who  desire  to  see  an  end  of  this  government 
will  deny  that  it  has  the  ability  to  save  itself.  Many 
new  inquiries  have  arisen  in  relation  to  the  existence 
and  limitation  of  its  powers.  Must  the  successful 
prosecution  of  war  against  rebels,  the  preservation  of 
national  honor,  and  securing  of  permanent  peace, — if 
attainable  only  by  rooting  out  the  evil  which  caused 
and  maintains  the  rebellion,  —  be  effected  by  destroy 
ing  rights  solemnly  guaranteed  by  the  constitution 
we  are  defending?  If  so,  the  next  question  will 
be,  whether  the  law  of  self-defence  and  overwhelm 
ing  necessity  will  not  justify  the  country  in  denying 
to  rebels  and  traitors  in  arms  whatever  rights  they 
or  their  friends  may  claim  under  a  charter  which 
they  have  repudiated,  and  have  armed  themselves  to 
overthrow  and  destroy?  Can  one  party  break  the 
contract,  and  justly  hold  the  other  party  bound  by  it  ? 
Is  the  constitution  to  be  so  interpreted  that  rebels  and 
traitors  cannot  be  put  down  ?  Are  we  so  hampered,  as 
some  have  asserted,  that  even  if  war  end  in  reestab 
lishing  the  Union,  and  enforcing  the  laws  over  all  the 
land,  the  results  of  victory  can  be  turned  against  us, 
and  the  conquered  enemy  may  then  treat  us  as  though 
they  had  been  victors  ?  Will  vanquished  criminals  be 
able  to  resume  their  rights  to  the  same  political  supe 
riority  over  the  citizens  of  free  States,  which,  as  the 
only  privileged  class,  they  have  hitherto  enjoyed  ? 
Have  they  who  are  now  engaged  in  this  rebellion,  and 
have  committed  treason  and  other  high  crimes  against 
the  republic,  a  protection  against  punishment  for  these 
offences,  by  reason  of  any  rights,  privileges,  or  immu 
nities  guaranteed  to  peaceful  citizens  by  the  constitu- 


STATEMENT    OF   LEADING    QUESTIONS.  13 

tion  ?  Cannot  government,  the  people's  agent,  wage 
genuine  and  effectual  war  against  the  people's  enemy  ? 
Must  the  soldier  of  the  Union,  when  in  action,  keep  one 
eye  upon  his  rifle,  and  the  other  upon  the  constitutional 
rights  of  rebels  ?  Is  the  power  to  make  war,  when 
once  lawfully  brought  into  action,  to  be  controlled, 
baffled,  and  emasculated  by  any  obligation  to  guard  or 
respect  rights  set  up  by  or  for  belligerent  traitors  ? 

THE   LEADING  QUESTIONS   STATED. 

What  limit,  if  any,  is  prescribed  to  the  war-making 
power  of  the  President,  as  Command er-in-Chief  of  the 
Army  and  Navy  of  the  United  States  ?  What  are  the 
rights  of  our  government  over  the  private  property  and 
persons  of  loyal  citizens  in  time  of  civil  war  ?  What 
authority  has  Congress  to  frame  laws  interfering  with 
the  ordinary  civil  or  political  rights  of  peaceable  citi 
zens  residing  in  the  rebel  States  ;  or  laws  for  the  pun 
ishment  or  control  of  public  enemies,  who  may  be  cap 
tured  as  spies,  as  pirates,  as  guerrillas,  as  aiders  and 
comforters  of  armed  traitors,  or  as  Confederate  soldiers 
on  the  battle-field  ?  What  are  the  powers  of  the  Pres 
ident  or  of  Congress  in  relation  to  the  conquest  and 
government  of  the  inhabitants  of  belligerent  districts  of 
country  ?  What  laws  may  be  established  as  to  slaves 
captured  or  escaping  into  the  lines  of  our  armies,  or 
into  the  free  States;  or  as  to  slaves  belonging  to  rebels, 
and  used  by  them  in  their  military  service  ?  Are  slaves 
contraband  of  war  ?  May  they  be  released  from  all 
obligation  to  serve  rebel  masters  ?  May  slavery  be 
destroyed  as  a  military  measure,  or  abolished  by  a  legis 
lative  act,  required  by  the  public  welfare  and  common 
defence,  in  time  of  civil  war  ?  In  what  department  of 


14  STATEMENT    OF   LEADING    QUESTIONS. 

government  is  the  power  vested  by  the  constitution  to 
abolish  or  destroy  slavery  ?  Is  there  any  limit  to  the 
power  of  Congress  to  provide  for  the  punishment  of 
treason  ?  What  are  the  rights  and  liabilities  of  traitors  ? 
What  are  the  war  powers  of  the  President,  and  the 
legislative  powers  of  Congress  in  relation  to  rebellion, 
treason,  and  slavery  ?  These  and  similar  inquiries  are 
frequently  made  among  the  plain  people  ;  and  it  is  for 
the  purpose  of  explaining  some  of  the  doctrines  of  law 
applicable  to  them,  thai  the  following  suggestions  have 
been  prepared. 


PUBLIC  USE  OF  PRIVATE  PROPERTY.         15 


CHAPTER    I. 

THE  CONSTITUTIONAL  RIGHT   OF  THE  GOVERNMENT  TO  AP 
PROPRIATE  PRIVATE  PROPERTY  TO  PUBLIC  USE. 

THE  general  government  of  the  United  States  has,  in 
time  of  peace,  a  legal  right,  under  the  constitution,  to 
appropriate  to  public  use  the  private  property  of  any 
subject,  or  of  any  number  of  subjects,  owing  it  alle 
giance,  whenever  justified  by  public  necessity.  Each  of 
the  States  claims  and  exercises  a  similar  right  over  the 
property  of  its  own  citizens. 

THIS  RIGHT   IS  FOUNDED  IN  REASON. 

All  permanent  governments  in  civilized  countries 
assert  and  carry  into  effect,  in  different  ways,  the  claim 
of  "  eminent  domain ;"  for  it  is  essential  to  their  au 
thority,  and  even  to  their  existence.  The  construction 
of  military  defences,  such  as  forts,  arsenals,  roads, 
bridges  or  canals,  however  important  for  the  protection 
of  a  country  in  time  of  war,  might  be  prevented  by 
private  interests,  if  the  property  of  individuals  could 
not  be  lawfully  taken  for  public  use.  Internal  improve 
ments  in  time  of  peace,  however  beneficial  to  the  pub 
lic,  requiring  the  appropriation  of  real  estate  belonging 
to  individuals,  might  be  interrupted,  if  there  were  no 
power  to  take,  without  the  consent  of  the  owner,  what 
the  public  necessities  require.  And  as  it  is  the  govern 
ment  which  protects  all  citizens  in  their  rights  to  life, 
liberty,  and  property,  they  are  deemed  to  hold  their 
property  subject  to  the  claim  of  the  supreme  protector 


16  PUBLIC    USE    OF    PRIVATE   PROPERTY. 

to  take  it  from  them  when  demanded  by  "  public  wel 
fare."  It  is  under  this  quasi  sovereign  power  that  the 
State  of  Massachusetts  seizes  b j  law  the  private  estates 
of  her  citizens  ;  and  she  even  authorizes  several  classes 
of  corporations  to  seize  land,  against  the  will  of  the 
proprietor,  for  public  use  and  benefit.  Railroads, 
canals,  turnpikes,  telegraphs,  bridges,  aqueducts,  could 
never  have  been  constructed  were  the  existence  of  this 
great  right  denied.  And  the  title  to  that  interest  in 
real  estate,  which  is  thus  acquired  by  legal  seizure,  is 
deemed  by  all  the  courts  of  that  commonwealth  to  be 
as  valid,  and  as  constitutional,  as  if  purchased  and  con 
veyed  by  deed,  under  the  hand  and  seal  of  the  owner. 


INDEMNITY  IS  REQUIRED. 

When  individuals  are  called  upon  to  give  up  what  is 
their  own  for  the  advantage  of  the  community,  justice 
requires  that  they  should  be  fairly  compensated  for  it : 
otherwise  public  burdens  would  be  shared  unequally. 
To  secure  the  right  to  indemnification,  which  was 
omitted  in  the  original  constitution  of  the  United 
States,  an  amendment  was  added,  which  provides  that 
private  property  shall  not  be  taken  for  public  use  with 
out  just  compensation.*  Similar  provisions  are  found 
in  the  constitutions  of  Massachusetts  and  of  several 
other  States,  The  language  of  this  amendment  admits 
the  authority  of  the  government  to  take  private  prop 
erty  for  public  use,  and,  being  now  a  part  of  the  con 
stitution,  leaves  that  authority  no  longer  open  to  ques 
tion,  if  it  ever  has  been  questioned. 

*  See  Amendment,  Art.  V.,  last  clause. 


PUBLIC    USE    OF   PRIVATE  PROPERTY.  17 

% 

In  guarding  against  the  abuse  of  the  right  to  take 
private  property  for  public  use,  it  is  provided  that  the 
owner  shall  be  entitled  to  be  fairly  paid  for  it ;  and 
thus  he  is  not  to  be  taxed  more  than  his  due  share  for 
public  purposes. 

It  is  not  a  little  singular  that  the  framers  of  the 
constitution  should .  have  been  less  careful  to  secure 
equality  in  distributing  the  burden  of  taxes.  Sect.  8 
requires  duties,  imposts,  and  excises  to  be  uniform  through, 
out  the  United  States,  but  it  does  not  provide  that  taxes 
should  be  uniform.  Although  Art.  I.,  Sect.  9,  provides 
that  no  capitation  or  other  direct  tax  shall  be  laid  unless 
in  proportion  to  the  census,  yet  far  the  most  important 
subjects  of  taxation  are  still  unprotected,  and  may  be 
UNEQUALLY  assessed,  without  violating  any  clause  of 
that  constitution,  which  so  carefully  secures  equality 
of  public  burdens  by  providing  compensation  for  pri 
vate  property  appropriated  to  the  public  benefit. 

"PUBLIC  USE." 

What  is  "public  use  "  for  which  private  property  may 
be  taken  ? 

Every  appropriation  of  property  for  the  benefit  of  the 
United  States,  either  for  a  national  public  improvement, 
or  to  carry  into  effect  any  valid  law  of  Congress  for  the 
maintenance,  protection,  or  security  of  national  inter 
ests,  is  "  public  user  Public  use  is  contradistinguished 
from  private  use.  That  which  is  for  the  use  of  the  country ', 
however  applied  or  appropriated,  is  for  public  use. 

Public  use  does  not  require  that  the  property  taken 
shall  be  actually  used.     It  may  be  disused,  removed,  01 
destroyed.     And  destruction  of  private  property  may  be 
the  best  public  use  it  can  be  put  to. 
3 


18  PUBLIC  .USE    OF    PRIVATE    PROPERTY. 

Suppose  a  bridge,  owned  by  a  private  corporation, 
to  be  so  located  as  to  endanger  our  forts  upon  the 
banks  of  a  river.  To  demolish  that  bridge  for  mili 
tary  purposes,  would  be  to  appropriate  it  to  pub 
lic  use.  To  raze  private  buildings  in  a  city,  for 
the  purpose  of  preventing  a  general  conflagration, 
would  be  to  apply  them  to  public  use.  To  de 
stroy  arms,  or  other  munitions  of  war,  belonging 
to  private  persons,  in  order  to  prevent  their  fall 
ing  into  possession  of  the  enemy,  would  be  to 
devote  them  to  public  use.  Congress  has  power, 
within  certain  limits,  to  pass  laws  providing  for  the 
common  defence  and  general  welfare,  under  Art.  I. 
Sect.  8  of  the  constitution ;  and  whenever,  in  their 
judgment,  the  common  defence  or  general  welfare,  in 
a  case  of  public  necessity,  requires  them  to  authorize 
the  appropriation  of  private  property  to  public  use, 
whether  that  use  be  the  employment  or  destruction  of 
the  property  taken,  they  have  the  right  to  pass  such 
laws  for  that  purpose  ;  and  whatever  is  done  with  it  is 
a  public  use  thereof,  and  entitles  the  owner  to  just  com 
pensation. 

ALL  KINDS   OF    PROPERTY,    INCLUDING    SLAVES,   MAY    BE    SO    APPRO 
PRIATED.* 

There  is  no  restriction  as  to  the  kind  or  character 
of  private  property  which  may  be  lawfully  thus  appro 
priated,  whether  it  be  real  estate,  personal  estate,  rights 
in  action  or  in  possession,  claims  for  money,  or  for  labor 
and  service.  Thus  the  obligations  of  minor  children  to 
their  parents,  of  apprentices  to  their  masters,  and  of 
other  persons  owing  labor  and  service  to  their  masters, 

*  See  the  resolutions  and  the  amendments  of  the  constitution  proposed  by  Congress 
on  the  subject  of  slavery  a  short  time  before  this  essay  was  written.  Note,  p.  132.  See 
also  Note  to  the  Forty-third  Edition,  on  "  Slavery,"  p.  393. 


PUBLIC    USE    OF   PRIVATE   PROPERTY.  19 

may  lawfully  be  taken  for  public  use,  or  discharged 
and  destroyed,  for  public  benefit,  by  authority  of  an  act 
of  Congress,  with  the  proviso  that  just  compensation 
shall  be  allowed  to  the  parent  or  master.  Our  gov 
ernment,  by  treaty,  discharged  the  claims  of  its  own 
citizens  against  France,  and  thus  applied  their  private 
property  to  public  use.  At  a  later  date  the  United 
States  discharged  the  claims  of  certain  slave  own 
ers  to  labor  and  service,  whose  slaves  had  been 
carried  away  by  the  British,  contrary  to  their 
treaty  stipulations.  In  both  cases  indemnity  was 
promised  by  our  government  to  the  owners ;  and  in 
case  of  the  slave  masters  it  was  actually  paid.  By 
abolishing  slavery  in  the  District  of  Columbia,  that 
which  was  considered  for  the  purposes  of  the  act  as 
private  property  was  appropriated  to  public  use,  with 
just  compensation  to  the  owners ;  Congress,  in  this 
instance,  having  the  right  to  pass  the  act  as  a  local, 
municipal  law;  but  the  compensation  was  from  the 
treasury  of  the  United  States. 

During  the  present  rebellion,  many  minors,  appren 
tices,  and  slaves  have  been  relieved  from  obligation  to 
their  parents  and  masters,  the  claim  for  their  services 
having  been  appropriated  to  public  use,  by  employing 
them  in  the  military  service  of  the  country. 

That  Congress  should  have  power  to  appropriate  every 
description  of  private  property  for  public  benefit  in  time 
of  war,  results  from  the  duty  imposed  on  it  by  the 
constitution  to  pass  laws  "  providing  for  the  common 
defence  and  general  welfare." 

Suppose  that  a  large  number  of  apprentices  desired 
to  join  the  army  as  volunteers  in  time  of  sorest  need, 
but  were  restrained  from  so  doing  only  by  reason  of 
their  owing  labor  and  service  to  their  employers,  who 


20  PUBLIC    USE    OF    PRIVATE    PROPERTY. 

were  equally  with  them  citizens  and  subjects  of  this 
government ;  would  any  one  doubt  that  Congress 
could  authorize  it  to  accept  these  apprentices  as  sol 
diers,  to  discharge  them  from  the  obligation  of  their 
indentures,  providing  just  compensation  to  their  em 
ployers  for  loss  of  their  services  ?  Suppose  that 
these  volunteers  owed  labor  and  service  for  life,  as 
slaves,  instead  of  owing  it  for  a  term  of  years ;  what 
difference  could  it  make  as  to  the  right  of  government 
to  use  their  services,  and  discharge  their  obligations, 
or  as  to  the  liability  to  indemnify  the  masters  ? 
The  right  to  use  the  services  of  the  minor,  the 
apprentice,  and  the  slave,  for  public  benefit,  belongs 
to  the  United  States.  The  claims  of  all  American 
citizens  upon  their  services,  whether  by  local  law,  or 
by  common  law,  or  by  indentures,  can  be  annulled  by 
the  same  power,  for  the  same  reasons,  and  under  the 
same  restrictions  that  govern  the  appropriation  of  any 
other  private  property  to  public  use. 

THE  UNITED  STATES  MAY  REQUIRE  ALL  SUBJECTS  TO  DO  MILITARY 

DUTY.* 

Slaves,  as  well  as  apprentices  and  minors,  are 
equally  subjects  of  the  United  States,  whether  they 
are  or  are  not  citizens  thereof.  The  government  of 
the  United  States  has  the  right  to  call  upon  all  its 
subjects  to  do  military  duty.  If  those  who  owe  labor 
and  service  to  others,  either  by  contract,  by  inden 
ture,  by  common  or  statute  law,  or  by  local  usage, 
could  not  be  lawfully  called  upon  to  leave  their  em 
ployments  to  serve  their  country,  no  inconsiderable 

*  See  Note  to  Forty-third  Edition,  p.  478,  on  "  Laws  for  raising  and  organizing  Military 
Forces."  Since  the  publication  of  the  fourth  edition  Congress  has  passed  the  act  of 
March  3,  1803,  and  the  act  of  February  24,  1804,  which  provides  for  the.  enrolment  of  col 
ored  men  and  slaves.  See  also  Kneedlcr  v.  Lane,  9  Wright,  228. 


PUBLIC   USE    OF   PRIVATE   PROPERTY.  21 

portion  of  the  able-bodied  men  would  thus  be  exempt, 
and  the  Constitution  and  laws  of  the  land  providing  for 
calling  out  the  army  and  navy  would  be  set  at  nought. 
But  the  Constitution  makes  no  such  exemptions  from 
military  duty.  Private  rights  cannot  be  set  up  to  over 
throw  the  claims  of  the  country  to  the  services  of  any 
one  of  its  subjects  who  owes  it  allegiance. 

How  far  the  United  States  is  under  obligation  to 
compensate  parents,  masters  of  apprentices,  or  masters 
of  slaves,  for  the  loss  of  service  and  labor  of  those 
subjects  who  are  enlisted  in  the  army  and  navy,  has 
not  been  yet  decided.:!:  The  constitution  recognizes 
slaves  as  "persons  held  to  labor  or  service"  So  also  are 
apprentices  and  minor  children  "  persons  held  to  labor 
and  service."  And,  whatever  other  claims  may  be  set 
up,  by  the  laws  of  either  of  the  slave  states,  to  any 
class  of  "  persons,"  the  constitution  recognizes  only  the 
claim  of  individuals  to  the  labor  and  service  of  other  in 
dividuals.  It  seems  difficult,  therefore,  to  state  any 
sound  principle  which  should  require  compensation  in 
one  case  and  not  in  the  other. 

WILL  SLAVEHOLDERS  BE   ENTITLED  TO  INDEMNITY  IF  THEIR  SLAVES 
ARE   USED   FOR  MILITARY  PURPOSES? 

It  is  by  no  means  improbable,  that,  in  the  emergency 
which  we  are  fast  approaching,  the  right  and  duty 
of  the  country  to  call  upon  all  its  loyal  subjects  to  aid 
in  its  military  defence  will  be  deemed  paramount  to  the 

*  If  an  apprentice  enlist  in  the  army,  the  courts  will  not,  upon  a  habeas  corpus,  issued 
at  the  relation  of  the  master,  remand  the  apprentice  to  his  custody,  if  he  be  unwilling  to 
return,  but  will  leave  the  master  to  his  suit  against  the  officer,  who,  by  Stat.  March  10, 
1802,  was  forbidden  to  enlist  him  without  the  master's  consent.  Commonwealth  v.  Rob 
inson,  1  S.  &  11.  353;  Commonwealth  v.  Harris,  7  Pa.  L.  J.  283. 

Note  to  Forty-third  Edition.  —  This  question,  as  it  regards  slaves,  has  been  decided  by 
the  act  of  February  24,  1864.  See  the  Note  on  «  Slavery,"  p.  393;  also  Index,  title  "  In 
demnity;"  also  the  Note  on  "  Compensation  to  Slave  Masters  for  Slaves  enlisted  into 
Military  Service,"  p.  405;  also  "  Solicitor's  Opinions,"  Records  of  the  War  Department, 
March  5  and  10,  May  20,  and  July  30,  1864. 


22         PUBLIC  USE  OF  PRIVATE  PROPERTY. 

claims  of  any  private  person  upon  such  subjects,  and  that  the 
loss  of  labor  and  service  of  certain  citizens,  like  the  loss 
of  life  and  property,  which  always  attends  a  state  of 
war,  must  be  borne  by  those  upon  whom  the  misfortune 
happens  to  fall.  It  may  become  one  of  the  great  polit 
ical  questions  hereafter,  whether,  if  slavery  should  as  a 
civil  act  in  time  of  peace,  or  by  treaty  in  time  of  war, 
be  wholly  or  partly  abolished,  for  public  benefit,  or  pub 
lic  defence,  such  abolishment  is  an  appropriation  of  private 
property  for  public  use,  ivithin  the  meaning  of  the  constitution. 

INDEMNITY  TO    MORMONS. 

The  question  has  not  yet  arisen  in  the  courts  of  the 
United  States,  whether  the  act  of  Congress,  which, 
under  the  form  of  a  statute  against  polygamy  abolishes 
Mormonism,  a  domestic  institution,  sustained  like  slavery 
only  by  local  law,  is  such  an  appropriation  of  the  claims 
of  Mormons  to  the  labor  and  service  of  their  wives  as 
requires  just  compensation  under  the  constitution  ?  A 
decision  of  this  question  may  throw  some  light  on  the 
point  now  under  consideration. 

EFFECT    OF    NATURALIZATION    AND    MILITIA    LAWS    ON    THE    QUES 
TION   OF  INDEMNITY  TO    SLAVE-MASTERS. 

A  further  question  may  arise  as  to  the  application 
of  the  "  compensation  "  clause  above  referred  to.  That 
Congress  has  authority  to  pass  naturalization  laws,  by 
Art.  I,  Sect.  8,  has  never  been  doubted.  The  only 
question  is,  whether  it  is  not  exclusive.*  Statutes  may 
thus  be  passed  which  would  give  the  privileges  of  citi 
zenship  to  any  person  whatsoever,  black  or  white. 

*  See  Chirac  v.  Chirac,  2  Wheat.  l>09;  United  States  v.  Villato,  2  Dall.  372;   TJiirlow  v. 
Mass.,  5  How.  5F5;  Smith  v.  Turner,  7  ib.  550  ;  Golden  v.  Prince, 3  W.  C.  C.  Reports,  314. 


PUBLIC    USE    OF   PRIVATE   PROPERTY. 

Colored  men,  having  been  citizens  in  some  of  the  States 
ever  since  they  were  founded,  and  having  acted  as  such 
prior  to  1788,  in  various  civil  and   military  capacities, 
are  deemed  by  eminent  jurists  citizens  of  the  United 
States.*      Under   our    present  laws,  according  to   the 
opinion  of  the  attorney-general  of  Massachusetts,  col 
ored  men  are  equally  with  white  men  required  to  be 
enrolled  in  the  militia  of  the  United  States,f  although 
such  was  not  the  case  under  the  previous  acts  of  1792 
and  1795.     "  The  general  government  has  authority  to 
determine  who   shall  and  who  may  not  compose  the 
militia  of  the  United  States ;  and  having  so  determined, 
the  state  government  has  no  legal  authority  to  prescribe 
a  different  enrolment. J     If,  therefore,  Congress  exercise 
either  of  these  undoubted  powers  to  grant  citizenship  to 
all  colored  persons  residing  or  coming  within  either 
of  the  States,  or  to  pass  an  act  requiring  the  enrolment 
of  all   able-bodied   persons  within  a   prescribed    age, 
whether  owing  labor  and  service   or  not,  §  &%part  of 
the  militia  of  the  United  States,  and  thereby  giving  to  all, 
as  they  become  soldiers  or  seamen,  their  freedom  from 
obligations  of  labor  and  service,  except  military  labor 
and    service,  then   the  question  would    arise,  whether 
government,  by  calling   its  own  subjects  and  citizens 
into  the  military  service  of  the  country,  in  case  of  over 
whelming  necessity,  could  be  required  by  the  constitu 
tion  to  recognize  the  private    relations   in  which  the 
soldier  might  stand,  by  local  laws,  to  persons  setting  up 
claims  against  him  ?     If  white  subjects  or  citizens  owe 
labor    and    service,  even   by  formal   indentures,  such 

*  See  the  case  of  Dred  Scott,  which  in  no  part  denies  that  if  colored  men  were  citizens  of 
either  of  the  States  which  adopted  the  Constitution,  they  were  citizens  of  the  United  States, 
t  See  Stat.  United  States,  July  17,  1862.     But  see  Note,  p.  478. 
t  8  Gray's  R.  615.  §  See  Act  approved  February  L>4,  1864. 


2  I'CJBLIC    USE    OF   PRIVATE   PROPERTY. 

obligations  afford  no  valid  excuse  against  the  requisition 
of  government  to  have  them  drafted  into  the  militia  to 
serve  the  country.  No  compensation  should  be  allowed 
to  those  who  claim  indemnity  for  the  loss  of  such  "  labor 
and  service."  Whether  the  color  of  the  debtor,  or  the 
length  of  time  during  which  the  obligation  (to  labor  arid 
service)  has  to  run,  or  the  evidence  by  which  the  existence 
of  the  obligation  is  proved,  can  make  an  essential  differ 
ence  between  the  different  kinds  of  labor  and  service, 
remains  to  be  seen.  The  question  is,  whether  the 
soldier  or  seaman,  serving  his  country  in  arms,  can  be 
deemed  private  property ',  as  recognized  in  the  constitution 
of  the  United  States  ?* 

DOES  THE   WAR  POWER  OF   SEIZURE    SUPERSEDE    THE  CIVIL  POWER 
OF    CONGRESS    TO  APPROPRIATE    PRIVATE    PROPERTY    TO    PUBLIC 

USE? 

That  the  property  of  any  citizen  may,  under  certain 
circumstances,  be  seized  in  time  of  war,  by  military  officers, 
for  public  purposes,  is  not  questioned,  just  compensation 
being  offered,  or  provided  for;  but  the  question  has 
been  asked,  whether  this  power  does  not  supersede 
the  right  of  Congress,  in  war,  to  pass  laws  to  take  away 
what  martial  law  leaves  unappropriated  ? 

This  inquiry  is  conclusively  answered  by  reference  to 
the  amendment  of  the  constitution,  above  cited,  which 
admits  the  existence  of  that  power  in  CONGRESS  ;f  but  in 
addition  to  this,  there  are  other  clauses  which  devolve 
powers  and  duties  on  the  legislature,  giving  them  a 
large  and  important  share  in  instituting,  organizing, 
carrying  on,  regulating,  and  ending  war;  and  these 
duties  could  not,  under  all  circumstances,  be  discharged 
in  war,  without  exercising  the  right  to  take  for  public 

*  Note  to  Forty-third  Edition.  —  This  question  has  been  settled  by  the  action  of  all  the 
departments  of  our  government, 
t  Amendments,  Art.  V.,  last  clause. 


PUBLIC    USE    OF   PRIVATE    PROPERTY.  25 

use  the  property  of  the  subject.  It  would  seem  strange 
if  private  property  could  not  be  so  taken,  while  it  is 
undeniable  that  in  war  the  government  can  call  into 
the  military  service  of  the  country  every  able-bodied 
citizen,  and  tax  his  property  to  any  extent. 

REFERENCES     TO     THE    CONSTITUTION,    SHOWING    THE    WAR    POWERS 

OF   CONGRESS. 

The  preamble  to  the  Constitution  declares  the  objects 
for  which  it  was  framed,  in  the  following  words:  — 

"  We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  pro 
vide  for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America." 

The  war  powers  of  the  legislative  department  are  set 
forth  chiefly  in  Art.  I.  Sect.  8  of  the  Constitution,  which 
provides  that  — 

"  The  Congress  shall  have  power,  — 

I.  "  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts  and  provide  for  the  common  defence  and  general  wel 
fare  of  the  United  States  ;  but  all  duties,  imposts  and  excises  shall 
be  uniform  throughout  the  United  States." 

II.  "  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water." 

12.  "  To  raise  and   support   armies ;   but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two  years." 

13.  "  To  provide  and  maintain  a  navy." 

14.  "  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces." 

15.  "  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections  and  repel  invasions." 

16.  "  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States  respec- 

4 


26  PUBLIC    USE    OF   PRIVATE   PROPERTY. 

tively,  the  appointment  of  the  officers,  and  the  authority  of  train 
ing  the  militia  according  to  the  discipline  prescribed  by  Con 
gress." 

18.  "  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof." 

SLAVE     PROPERTY     SUBJECT     TO     THE  *  SAME     LIABILITY    AS    OTHER 
PROPERTY   TO  BE  APPROPRIATED   FOR  WAR   PURPOSES. 

If  the  public  welfare  and  common  defence,  in  time  of  war, 
require  that  the  claims  of  masters  over  their  appren 
tices  or  slaves  should  be  cancelled  or  abrogated,  against 
their  consent,  and  if  a  general  law  carrying  into  execu 
tion  such  abrogation,  is,  in  the  judgment  of  Congress, 
"  a  necessary  and  proper  measure  for  accomplishing 
that  object,"  there  can  be  no  .question  of  the  constitu 
tional  power  and  right  of  Congress  to  pass  such  a  law.* 
The  only  doubt  is  in  relation  to  the  right  to  compensa 
tion.  If  it  should  be  urged  that  to  release  slaves  from 
their  servitude  would  be,  in  effect,  to  impair  or  destroy 
the  obligation  of  contracts,  it  may  be  replied  that 
though  states  have  no  right  to  pass  laws  impairing  the 
obligation  of  contracts,  Congress  is  at  liberty  to  pass 
such  laws.  The  right  to  abrogate  and  cancel  the  obli 
gations  of  apprentices  and  slaves  does  not  rest  solely 
upon  the  power  of  Congress  to  appropriate  private 
property  to  public  use  ;  but  it  necessarily  results  from 
its  obligation  to  use  the  proper  means  to  accomplish 
one  of  the  chief  objects  for  which  the  Union  was  formed, 
namely,  to  provide  for  the  common  defence  and  general 
welfare  of  the  United  States  in  time  of  war.f 

*  Note  to  Forty-third  Edition.— This  principle  was  sanctioned  and  acted  upon  by 
the  Confederate  Congress  in  their  Stat.  February  17,  1864,  Chap.  79,  which  authorized  the 
seizure  and  impressment  into  their  army  of  free  negroes  and  slaves. 

t  See  Note  on  "  Compensation  to  Slave-masters,"  p.  405. 


PUBLIC    USE    OF   PRIVATE    PROPERTY.  27 

IMPORTANCE  AND  DANGER  OF  THESE   POWERS. 

The  powers  conveyed  in  the  18th  clause  of  Art.  I., 
Sect.  8,  are  of  vast  importance  and  extent.  It  may  be 
said  that  they  are,  in  one  sense,  unlimited  and  discretion 
ary.  They  are  more  than  imperial.  But  it  was  in 
tended  by  the  framers  of  the  constitution,  or,  what  is 
of  more  importance,  by  the  people  who  made  and  adopt 
ed  it,  that  the  powers  of  government  in  dealing  with 
civil  rights  in  time  of  peace,  should  be  defined  and  lim 
ited  ;  but  the  powers  u  to  provide  for  the  general  ivelfare 
and  the  common  defence "  in  time  of  war,  should  be  un 
limited.  It  is  true  that  such  powers  may  be  temporarily 
abused ;  but  the  remedy  is  always  in  the  hands  of  the • 
people,  who  can  unmake  laws  and  select  new  repre 
sentatives  and  senators. 

POWERS   OF  THE    PRESIDENT   NOT  IN   CONFLICT  WITH   THOSE   OF 
CONGRESS. 

It  is  not  necessary  here  to  define  the  extent  to  which 
congressional  legislation  may  justly  control  and  regu 
late  the  conduct  of  the  army  and  navy  in  service  ;  or 
to  point  out  the  dividing  line  between  civil  and  martial 
law.  But  the  power  of  Congress  to  pass  laws  on  the 
subjects  expressly  placed  in  its  charge  by  the  terms  of 
the  constitution  cannot  be  taken  away  from  it  by  rea 
son  of  the  fact  that  the  President,  as  commander-in- 
chief  of  the  army  and  navy,  also  has  powers,  equally 
constitutional,  to  act  upon  the  same  subject-matters. 
It  does  not  follow  that  because  Congress  has  a  right  to 
abrogate  the  claims  of  Mormons  or  slaveholders,  the 
President,  as  commander,  may  not  also  do  the  same 
thing.  These  powers  are  not  inconsistent,  or  conflicting. 
Congress  may  pass  laws  concerning  captures  on  land 
and  on  the  water.  If  slaves  are  captured,  and  are  treated 


PUBLIC    USE    OF    PRIVATE   PROPERTY. 

as  "captured  property,"  Congress  should  determine 
what  is  to  be  done  with  them;*  and  it  will  be  the 
President's  duty  to  see  that  these  as  well  as  other  laws 
of  the  United  States  are  executed. 

CONGRESS    HAS    POWER    UNDER    THE     CONSTITUTION    TO    ABOLISH 

SLAVERY. 

Whenever,  in  the  judgment  of  Congress,  the  common 
defence  and  public  welfare,  in  time  of  war,  require  the 
removal  of  the  condition  of  slavery,  it  is  within  the 
scope  of  its  constitutional  authority  to  pass  laws  for 
that  purpose.-)- 

If  such  laws  are  deemed  to  take  private  prop 
erty  for  public  use,  or  to  destroy  private  property 
for  public  benefit,  as  has  been  shown,  that  may  be  done 
under  the  constitution,  by  providing  just  compensation ; 
otherwise,  no  compensation  can  be  required.  It  has 
been  so  long  the  habit  of  those  who  engage  in  public 
life  to  disclaim  any  intention  to  interfere  with  slavery 
in  the  States,  that  they  have  of  late  become  accustomed 
to  deny  the  right  of  Congress  to  do  so.  But  the  constitu 
tion  contains  no  clause  or  sentence  prohibiting  the  exercise  ~by 
Congress  of  the  plenary  power  of  abrogating  involuntary  servi 
tude.  The  only  prohibition  contained  in  that  instrument 
relating  to  persons  held  to  labor  and  service,  is  in  Art.  IV., 
which  provides  that,  "No  person  held  to  service  or  labor 
in  one  state,  under  the  laws  thereof,  escaping  into  another, 
shall,  in  consequence  of  any  law  or  regulation  "  therein," 
be  discharged  from  such  service  or  labor ;  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  ser 
vice  or  labor  may  be  due."  Thus,  if  a  slave  or  appren- 

*  Constitution,  Art.  I.  Sect.  8,  Cl.  11. 

t  Note  to  Forty-third  Edition.  — This  has  been  done  by  a  series  of  acts,  and  consum 
mated  by  constitutional  amendments.    See  Note  on  "  Slavery,"  p.  393. 


PUBLIC   USE   OF   PRIVATE   PROPERTY 


29 


tice,  owing  service  to  his  employer  in  Maryland,  escapes 
to  New  York,  the  legislature  of  New  York  cannot,  by 
any  law  or  regulation,  legally  discharge  such  apprentice 
or  slave  from  his  liability  to  his  employer.  This  restric 
tion  is,  in  express  terms,  applicable  only  to  State  legislatures, 
and  not  to  Congress. 

Many  powers  given  to  Congress  are  denied  to  the 
States ;  and  there  are  obvious  reasons  why  the  supreme 
government  alone  should  exercise  so  important  a  right. 
That  a  power  is  withdrawn  from  the  States,  indicates, 
by  fair  implication,  that  it  Mongs  to  the  United  States, 
unless  expressly  prohibited,  if  it  is  embraced  within 
the  scope  of  powers  necessary  to  the  safety  and  pres 
ervation  of  the  government,  in  peace  or  in  civil  war. 

It  will  be  remarked  that  the  provision  as  to  slaves 
in  the  constitution  relates  only  to  fugitives  from  labor 
escaping  from  one  state  into  another ;  not  to  the  status 
or  condition  of  slaves  in  any  of  the  states  where  they 
are    held,    while    another   clause    in    the    constitution 
relates  to  fugitives  from  justice/11     Neither   clause   has 
any  application  to   citizens   or    persons    who   are   not 
fugitives.     And  it  would   be  a  singular   species  of  rea 
soning  to  conclude  that,  because  the  constitution  pre 
scribed  certain  rules  of  conduct  towards  persons  escaping 
from  one  State  into  another,  therefore  there  is  no  power 
to  make  rules  relating  to  other  persons  ivtio  do  not  escape 
from  one  State  into  another.     If  Congress  were  expressly 
empowered    to    pass   laws    relating   to    persons   when 
escaping  from  justice    or  labor  by    fleeing    from  their 
own   States,  it  would  be  absurd    to   infer    that    there 
could  be   no    power   to   pass   laws    relating  to    these 
same    persons  when   staying    at  home.     The  govern- 


*  Constitution,  Art.  IV.  Sect.  2. 


30  PUBLIC    USE    OF   PRIVATE   PROPERTY. 

ment  may  pass  laws  requiring  the  return  of  fugitives : 
they   may   pass    other    laws    punishing    their    crimes, 
or  relieving  them  from  penalty.     The  power  to  do  the 
one  by  no  means  negatives  the  power  to  do  the  other. 
If  Congress  should  discharge  the  obligations  of  slaves 
to  render  labor  and  service,  by  passing  a  law  to  that 
effect,  such  law  would  supersede  and  render  void  afl 
rules,  regulations,  customs,  or  laws  of  either  State  to  the 
contrary,  for  the  constitution,  treaties,  and  laws  of  the 
United  States  are  the  supreme  law  of  the  land.     If 
slaves  were  released  by  act  of  Congress,  or  by  the  act 
of  their  masters,   there  would  be  no  person  held  to  labor 
as  a  slave  by  the  laws  of  any  State,  and  therefore  there 
would  be  no  person  to  whom  the  clause  in  the  consti 
tution  restraining  State  legislation  could  apply.     This 
clause,  relating  to  fugitive  slaves,  has  often  been  misun 
derstood,  as  it  has  been  supposed  to  limit  the  power  of 
Congress,  while  in  fact  it  applies  in  plain  and  express  terms 
only  to  the  States,  controlling  or  limiting  their  powers,  but 
having  no  application  to  the  general  government.     If 
the  framers  of  the  constitution  intended  to  take  from 
Congress  the  power  of  passing  laws  relating  to  slaves 
in  the  States  or  elsewhere,  they  would  have  drafted  a 
clause  to  that  effect.     They  did  insert  in  that  instru 
ment  a  proviso  that  Congress  should  pass  no  law  pro 
hibiting    the    importation  of  such  persons  as  any  of 
the  States   should   think   proper   to   admit   (meaning 
slaves)    prior    to  1808.*       And   if  they  did    not  de~- 
sign  that  the  legislature  should  exercise  control  over 
the  subject  of  domestic  slavery,  whenever  it  should 
assume  such  an  aspect  as  to  involve  national  interests, 
the  introduction  of  the  proviso  relating  to  the  slave 

*  Constitution,  Art.  T.  Sect.  9. 


01 

PUBLIC    USE    OF   PRIVATE   PROPERTY. 

trade,  and  of  several  other  clauses  in  the  plan  of  gov 
ernment,  makes  the  omission  of  any  prohibition  of 
legislation  on  slavery  unaccountable. 


CONCLUSION. 


Thus  it  has  been  shown  that  the  government  has 
*  the  right  to  appropriate  to  public  use  private  property  of 
every  description ;  that  "  public  use "  may  require  the 
employment  or  the  destruction  of  such  property ;  that 
if  the  "  right  to  the  labor  and  service  of  others,"  as 
slaves,  be  recognized  in  the  broadest  sense  as  "prop* 
erty,"  there  is  nothing  in  the  constitution  which 
deprives  Congress  of  the  power  to  appropriate  "  that 
description  of  property  "  to  public  use,  by  terminating 
slavery,  as  to  all  persons  now  held  in  servitude,  when 
ever  laws  to  that  effect  are  required  by  "  the  public 
welfare  and  the  common  defence "  in  time  of  war ; 
that  this  power  is  left  to  the  discretion  of  Congress, 
which  is  the  sole  and  exclusive  judge  as  to  the  occa 
sions  when  it  shall  be  exercised,  and  from  that  judg 
ment  there  is  no  appeal.  The  right  to  "just  compen 
sation  "  for  private  property  so  appropriated  will  depend 
upon  the  circumstances  under  which  it  is  taken,  and 
the  legal  conditions  of  the  claimant.* 

NOTE.  — As  to  the  use  of  discretionary  powers  in  other  departments,  see  Martin  v. 
Mott,  12  Wheat.  29-31;  Luther  v.  Borden,  7  How.  44,  45. 

*  Note  to  Forty-third  Edition.  —  See  Solicitor's  Opinions,  illustrative  of  the  manner  in 
which  these  principles  were  applied  by  the  War  Department  during  the  rebellion 
(pp.  357-390.)  See  also  Note  on  "  Slaves  in  the  Army,"  p.  405. 


INTRODUCTION    TO    CHAPTER   II. 


THE  Constitution,  Art.  I.,  Sect.  8,  clause  18,  gives  Congress  power  '  to 
make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into  execu 
tion  the  foregoing  powers,  and  all  other  powers  vested  by  this  Constitution 
in  the  Government  of  the  United  States,  or  in  any  Department  or  officer 
thereof." 

Art.  II.,  Sect.  2,  clause  1,  provides  that  "the  President  shall  be  Com 
mander-in-chief  of  the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States,  when  called  into  the  actual  service  of  the 
United  States." 

Art.  I.,  Sect.  8,  declares  that  "  Congress  shall  have  power  to  provide  for 
calling  forth  the  Militia  to  execute  the  laws  of  the  Union,  suppress  insur 
rections,  and  repel  invasions." 

As  the  President  is,  within  the  sense  of  Art.  I.,  Sect.  8,  clause  IS,  "  an 
officer  of  government ;"  and  by  virtue  of  Art.  II.,  Sect.  2,  clause  I,  he  is 
Commander-in-cliief  of  the  Army  and  Navy ;  and  as,  by  virtue  of  Art.  II., 
Sect.  2,  clause  1,  and  Art.  I.,  Sect.  8,  the  power  is  vested  in  him  as  "  an 
officer  of  the  government "  to  suppress  rebellion,  repel  invasion,  and  to 
maintain  the  Constitution  by  force  of  arms,  in  time  of  war,  and  for  that 
purpose  to  overthrow,  conquer,  and  subdue  the  enemy  of  his  country,  so 
completely  as  to  "insure  domestic  tranquillity,"  —  it  follows  by  Art.  /., 
Sect.  8,  clause  18,  that  Congress  may,  in  time  of  war,  pass  all  laws  which 
shall  be  necessary  and  proper  to  enable  the  President  to  carry  into  exe 
cution  "  all  his  military  powers. 

It  is  his  duty  to  break  down  the  enemy,  and  to  deprive  them  of  their 
means  of  maintaining  war :  Congress  is  therefore  bound  to  pass  such  laws 
as  will  aid  him  in  accomplishing  that  object. 

If  it  has  power  to  make  laws  for  carrying  on  the  government  in  time  of 
peace,  it  has  the  power  and  duty  to  make  laws  to  preserve  it  from  destruc 
tion  in  time  of  war. 


(33) 


34  WAR    POWERS    OF    CONGRESS. 

CHAPTER    II. 

WAll   POWERS   OF  CONGRESS.* 

CONGRESS  has  power  to  frame  statutes  not  only  for  the 
punishment  of  crimes,  but  also  for  the  purpose  of  aid 
ing  the  President,  as  command er-in-chief  of  the  army 
and  navy,  in  suppressing  rebellion,  and  in  the  final  and 
permanent  conquest  of  a  public  enemy.  "  It  may  pass 
such  laws  as  it  may  deem  necessary,"  says  Chief  Justice 
Marshall,  "  to  carry  into  execution  the  great  powers 
granted  by  the  constitution  ; "  and  "  necessary  means, 
in  the  sense  of  the  constitution,  does  not  import  an 
absolute  physical  necessity,  so  strong  that  one  thing 
cannot  exist  without  the  other.  It  stands  for  any 
means  calculated  to  produce  the  end." 

RULES    OF  INTERPRETATION. 

The  constitution  provides  that  Congress  shall  have 
power  to  pass  "  all  laws  necessary  and  proper  "  for  car 
rying  into  execution  all  the  powers  granted  to  the  gov 
ernment  of  the  United  States,  or  any  department  or 
officer  thereof.  The  word  "  necessary,"  as  used,  is  not 
limited  by  the  additional  word  "  proper,"  but  enlarged 
thereby. 

"  If  the  word  necessary  were  used  in  the  strict,  rigorous  sense,  it 
would  be  an  extraordinary  departure  from  the  usual  course  of  the 
human  mind,  as  exhibited  in  solemn  instruments,  to  add  another  word, 
the  only  possible  effect  of  which  is  to  qualify  that  strict  and  rigorous 
meaning,  and  to  present  clearly  the  idea  of  a  choice  of  means  in  the 
course  of  legislation.  If  no  means  are  to  be  resorted  to  but  such  as 

*  For  references  to  the  clauses  of  the  Constitution  containing'  the  war  powers  of  Con 
gress,  see  ante,  pp.  25,  20. 


WAR    POWERS    OF    CONGRESS.  35 

are  indispensably  necessary,  there  can  be  neither  sense  nor  utility  in 
adding  the  word  l  proper?  for  the  indispensable  necessity  would  shut 
out  from  view  all  consideration  of  the  propriety  of  the  means.*'  * 

Alexander  Hamilton  says,  — 

"  The  authorities  essential  to  the  care  of  the  common  defence  are 
these  :  To  raise  armies  ;  to  build  and  equip  fleets  ;  to  prescribe  rules  for 
the  government  of  both  ;  to  direct  their  operations  ;  to  provide  for  their 
support.  These  powers  ought  to  exist  WITHOUT  LIMITATION,  because 
it  is  impossible  to  foresee  or  to  define  the  extent  and  variety  of  national 
exigencies,  and  the  correspondent  extent  and  variety  of  the  means 
necessary  to  satisfy  them.  The  circumstances  which  endanger  the 
safety  of  nations  are  infinite ;  and  for  this  reason  no  constitutional 
shackles  can  wisely  be  imposed  on  the  power  to  which  the  care  of  it 
is  committed.  .  .  .  This  power  ought  to  be  under  the  direction  of  the 
same  councils  which  are  appointed  to  preside  over  the  common  defence. 
...  It  must  be  admitted,  as  a  necessary  consequence,  that  there  can 
be  no  limitation  of  that  authority  which  is  to  provide  for  the  defence 
and  protection  of  the  community  in  any  matter  essential  to  its  efficacy 
—  that  is,  in  any  matter  essential  to  the  formation,  direction,  or  sup 
port  of  the  NATIONAL  FORCES." 

This  statement,  Hamilton  says, — 

"  Rests  upon  two  axioms,  simple  as  they  are  universal :  the  means 
ought  to  be  proportioned  to  the  end ;  the  persons  from  whose  agency 
the  attainment  of  the  end  is  expected,  ought  to  possess  the  means  by 
which  it  is  to  be  attained."  f 

The  doctrine  of  the  Supreme  Court  of  the  United 
States,  announced  by  Chief  Justice  Marshall,  and  ap 
proved  by  Daniel  Webster,  Chancellor  Kent,  and  Judge 
Story,  is  thus  stated  :  — 

"  The  government  of  the  United  States  is  one  of  enumerated  pow 
ers,  and  it  can  exercise  only  the  powers  granted  to  it ;  but  though 
limited  in  its  powers,  it  is  supreme  within  its  sphere  of  action.  It  is 
the  government  of  the  people  of  the  United  States,  and  emanated 
from  them.  Its  powers  were  delegated  by  all,  and  it  represents  all, 
and  acts  for  all. 

•*  There  is  nothing  in  the  constitution  which  excludes  incidental  01 

*  3  Story's  Commentaries,  Sect.  122.  t  Federalist,  No.  23,  pp.  95,  96. 


36  WAR   POWERS    OF    CONGRESS. 

implied  powers.     The  Articles  of  Confederation  gave  nothing  to  the 
United  States  but  what  was  expressly  granted ;  but  the  new  constitu 
tion  dropped  the  word  expressly,  and  left  the  question  whether  a  par 
ticular  power  was  granted  to  depend  on  a  fair  construction  of  the  whole 
instrument.     No  constitution  can  contain  an  accurate  detail  of  all  the 
subdivisions  of  its  powers,  and  all  the  means  by  which  they  might  be 
carried  into  execution.     It  would  render  it  too  prolix.     Its  nature 
requires  that  only  the  great  outlines  should  be  marked,  and  its  impor 
tant  objects  designated,  and  all  the  minor  ingredients  left  to  be  de 
duced  from  the  nature  of  those  objects.     The  sword  and  the  purse, 
all  the  external  relations,  and  no  inconsiderable  portion  of  the  industry 
of  the  nation,  were  intrusted  to  the  general  government;  and  a  gov 
ernment  intrusted  with  such  ample  powers,  on  the  due  execution  of 
which  the  happiness  and  prosperity  of  the  people  vitally  depended, 
must  also  be  intrusted  with  ample  means  of  their  execution.     Unless 
the  words  imperiously  require  it,  we  ought  not  to  adopt  a  construction 
which  would  impute  to  the  framers  of  the  constitution,  when  granting 
great  powers  for  the  public  good,  the  intention  of  impeding  their  exer 
cise  by  withholding  a  choice  of  means.     The  powers  given  to  the 
government  imply  the  ordinary  means  of  execution  ;  and  the  govern 
ment,  in  all  sound  reason  and  fair  interpretation,  must  have  the  choice 
of  the  means  which  it  deems  the  most  convenient  and  appropriate  to 
the  execution  of  the  power.     The  constitution  has  not  left  the  right 
of  Congress  to  employ  the  necesssary  means  for  the  execution  of  its 
powers  to  general  reasoning.     Art.  I,  Sect.  8,  of   the    constitution, 
expressly  confers  on  Congress  the  power  '  to  make  all  laws  that  may 
be  necessary  and  proper  to  carry  into  execution  the  foregoing  powers.' 
"  Congress  may  employ  such  means  and  pass  such  laws  as  it  may 
deem  necessary  to  carry  into  execution  great  powers  granted  by  the 
constitution  ;  and  necessary  means,  in  the  sense  of  the  constitution, 
does  not  import  an  absolute  physical  necessity,  so  strong  that  one 
thing  cannot  exist  without  the  other.     It  stands  for  any  means  calcu 
lated  to  produce  the  end.     The  word  necessary  admits  of  all  degress 
of  comparison.     A  thing  may  be  necessary,  or  very  necessary,  or 
absolutely  or  indispensably  necessary.     The  word  is  used  in  various 
senses,  and  in  its  construction  the  subject,  the  context,  the  intention, 
are  all  to  be  taken  into  view.     The  powers  of  the  government  were 
given  for  the  welfare  of  the   nation.     They  were  intended  to  endure 
for  ages  to  come,  and  to  be  adapted  to  the  various  crises  in  human 
affairs.     To  prescribe  the  specific  means  by  which  government  should 


WAR   POWERS    OF    CONGRESS.  37 

in  all  future  time  execute  its  power,  and  to  confine  the  choice  of  means 
to  such  narrow  limits  as  should  not  leave  it  in  the  power  of  Congress 
to  adopt  any  which  might  be  appropriate  and  conducive  to  the  end, 
would  be  most  unwise  and  pernicious,  because  it  would  be  an  attempt 
to  provide,  by  immutable  rules,  for  exigencies  which,  if  foreseen  at 
all.  must  have  been  foreseen  dimly,  and  would  deprive  the  legislature 
of  the  capacity  to  avail  itself  of  experience,  or  to  exercise  its  reason, 
and  accommodate  its  legislation  to  circumstances.  If  the  end  be  legit 
imate,  and  within  the  scope  of  the  constitution,  all  means  which  are 
appropriate,  and  plainly  adapted  to  this  end,  and  which  are  not  pro 
hibited  by  the  constitution,  are  lawful."  * 

Guided  by  these  principles  of  interpretation,  it  is 
obvious  that  if  the  confiscation  of  property,  or  the  liber 
ation  of  .slaves  of  rebels,  be  "  plainly  adapted  to  the  end," 
—  that  is,  to  the  suppression  of  rebellion,  —  it  is  within 
the  power  of  Congress  to  pass  laws  for  those  purposes. 
Whether  they  are  adapted  to  produce  that  result  is  for 
the  legislature  alone  to  decide.  But,  in  considering  the 
war  powers  conferred  upon  that  department  of  govern 
ment,  a  broad  distinction  is  to  be  observed  between 
confiscation  or  emancipation  laws,  passed  in  time  of 
peace,  for  the  punishment  of  crime,  arid  similar  laws, 
passed  in  time  of  war.  to  aid  the  President  in  suppressing 
rebellion,  in  carrying  on  a  civil  war,  and  in  securing  "the 
public  welfare  "  and  maintaining  the  "  common  defence  " 
of  the  country.  Congress  may  pass  such  laws  in  peace  or 
in  war  as  are  within  the  general  powers  conferred  on  it, 
unless  they  fall  within  some  express  prohibition  of  the 
constitution.  If  confiscation  or  emancipation  laws  are  en 
acted  under  the  war  powers  of  Congress,  we  must  deter 
mine,  in  order  to  test  their  validity,  whether,  in  suppress 
ing  a  rebellion  of  colossal  proportions,  the  United  States 
are,  within  the  meaning  of  the  constitution,  at  ivar  with  its 

*  On  the  interpretation  of  constitutional  power,  see  1  Kent's  Com.  351,  352;  McCulloch 
v.  The  State  of  Maryland,  4  Wheat.  R.  413-420. 


38  WAR    POWERS    OF    CONGRESS. 

own  citizens?  whether  confiscation  and  emancipation  are 
sanctioned  as  belligerent  rights  by  the  law  and  usage  of 
civilized  nations  ?  and  whether  our  government  has  full 
belligerent  rights  against  its  rebellious  subjects? 

ARE  THE  UNITED  STATES   AT  WAR?* 

War  may  originate  in  either  of  several  ways.  The 
navy  of  a  European  nation  may  attack  an  American 
frigate  in  a  remote  sea.  Hostilities  then  commence 
without  any  invasion  of  the  soil  of  America,  or  any 
insurrection  of  its  inhabitants.  A  foreign  power  may 
send  troops  into  our  territory  with  hostile  intent,  and 
without  declaration  of  war ;  yet  war  would  exist  solely 
by  this  act  of  invasion.  Congress,  on  one  occasion, 
passed  a  resolution  that  "  war  existed  by  the  act  of 
Mexico ; "  but  no  declaration  of  war  had  been  made 
by  either  belligerent.  Civil  war  may  commence  either 
as  a  general  armed  insurrection  of  slaves,  a  servile 
war;  or  as  an  insurrection  of  their  masters,  a  re 
bellion;  or  as  an  attempt,  by  a  considerable  portion 
of  the  subjects,  to  overthrow  their  government  — 
which  attempt,  if  successful,  is  termed  a  revolution. 
Civil  war,  within  the  meaning  of  the  constitution, 
exists  also  whenever  any  combination  of  citizens  is 
formed  to  resist  generally  the  execution  of  any  one  or 
of  all  the  laws  of  the  United  States,  if  accompanied  with 
overt  acts  to  give  that  resistance  effect. 

DECLARATION     OF    WAR    NOT     NECESSARY    ON    THE    PART    OF    THE 
GOVERNMENT   TO   GIVE   IT   FULL  BELLIGERENT    POWERS. 

A  state  of  war  may  exist,  arising  in  any  of  the  modes 
above  mentioned,  without  a  declaration  of  war  by  either 
of  the  hostile  parties.  Congress  has  the  sole  power. 

*  Note  to  the  Forty-third  Edition.  —  See  Twiss  on  the  Law  of  Nations,  pp.  C5-G9;  and 
cases  decided  by  the  Supreme  Court  of  the  United  States  since  the  issue  of  the  tenth  edi 
tion.  Appendix,  pp.  512-610. 


AVAR    POWERS    OF    CONGRESS.  39 

under  the  constitution,  to  make  that  declaration,  and 
to  sanction  or  authorize  the  commencement  of  offensive 
war.  The  United  States  would  ordinarily  begin  hos 
tilities  against  a  foreign  nation  by  a  public  proclama 
tion,  which  would  be  equivalent  to  a  declaration  of  war. 
But  this  is  quite  a  different  case  from  a  defensive  or 
a  civil  war.  The  constitution  establishes  the  mode  in 
which  this  government  shall  commence  wars,  the  author 
ity  which  may  authorize,  and  the  declarations  which 
shall  precede,  any  act  of  hostility.;  but  it  has  no  power 
to  prescribe  the  manner  in  which  others  should  begin 
war  against  us.  Hence  it  follows,  that  when  war  is 
commenced  against  this  country  by  aliens  or  by  citizens, 
no  declaration  of  war  by  the  government  is  necessary.* 
The  fact  that  war  is  levied  against  the  United  States, 
makes  it  the  duty  of  the  President  to  call  out  the  army 
or  navy  to  subdue  the  enemy,  whether  foreign  or  do 
mestic.  The  chief  object  of  a  declaration  of  war  is  to 
give  notice  thereof  to  neutrals,  in  order  to  fix  their 
rights,  and  liabilities  to  the  hostile  powers,  and  to 
give  to  innocent  parties  reasonable  time  to  withdraw 
their  persons  and  property  from  danger.  If  the  com- 
mander-in-chief  could  not  call  out  his  forces  to  repel 
an  invasion  unless  the  Legislative  department  had  pre 
viously  made  a  formal  declaration  of  war,  a  foreign 
enemy,  during  a  recess  of  Congress,  might  send  out  its 
armed  cruisers  to  sweep  our  commerce  from  the  seas,  or 
it  might  cross  our  borders  and  inarch,  unopposed,  from 
Canada  to  the  Gulf  before  a  majority  of  our  Repre 
sentatives  could  be  convened  to  make  that  declaration. 
The  constitution,  made  as  it  was  by  men  of  sense, 
never  leaves  the  nation  powerless  for  self-defence. 
That  instrument,  which  gives  the  legislature  authority 

*  See  opinion  of  the  Supreme  Court  of  the  United  States  on  this  subject,  pronounced 
since  the  fourth  edition  of  this  work  was  published.     Notes  on  the  War  Powers,  p.  HI. 


40  WAR    POWERS    OF    CONGRESS. 

to  declare  war,  whenever  war  is  initiated  by  the  United 
States,  also  makes  it  the  duty  of  the  President,  as  com 
mand  er-in-chief,  to  engage  promptly  and  effectually  in 
war  ;  or,  in  other  words,  to  make  the  United  States  a 
belligerent  nation,  without  declaration  of  war,  or  any 
other  act  of  Congress,  whenever  he  is  legally  called 
upon  to  suppress  rebellion,  repel  invasion,  or  to  execute 
the  laws  against  armed  and  forcible  resistance  thereto. 
The  President  has  his  duty.  Congress  have  theirs  ;  they 
are  separate,  and  in  some  respects  independent.  Noth 
ing  is  clearer  than  this,  that  when  such  a  state  of  hos 
tilities  exists  as  justifies  the  President  in  calling  the 
army  into  actual  service,  without  the  authority  of  Con 
gress,  no  declaration  of  war  is  requisite,  either  in  form  or 
substance,  for  any  purpose  whatsoever.  Hence  it  fol 
lows,  that  government,  while  engaged  in  suppressing  a 
rebellion,  is  not  deprived  of  the  rights  of  a  belligerent 
agaimt  rebels,  by  reason  of  the  fact  that  no  formal  decla 
ration  of  war  has  been  made  against  them,  as  though 
they  were  an  alien  enemy,  —  nor  by  reason  of  the  cir 
cumstance  that  this  £reat  civil  wrar  originated,  so  far  as 

O  O  ' 

we  are  parties  to  it,  in  an  effort  to  resist  an  armed 
attack  of  citizens  upon  the  soldiers  and  the  forts  of  the 
United  States.  It  must  not  be  forgotten  that  by  the 
law  of  nations  and  by  modern  usage,  no  formal  declaration 
of  war  to  the  enemy  is  made  or  deemed  necessary.*  All 
that  is  now  requisite  is  for  each  nation  to  make  suita 
ble  declarations  or  proclamations  to  its  own  citizens,  to 
enable  them  to  govern  themselves  accordingly.  These 
have  been  made  by  the  President. 

HAS   GOVERNMENT   FULL   WAR    POWERS  AGAINST    REBEL    CITIZENS .' 

Some  persons   have    questioned    the    right   of    the 
United  States  to  make  and  carry  on  war  against  citi- 

*  Sec  1  Kent's  Com.  p.  54. 


WAR    POWERS    OF    CONGRESS.  41 

zens  and  subjects  of  this  country.  Conceding  that  the 
President  may  be  authorized  to  call  into  active  service 
the  navy  and  army  "  to  repel  invasion,  or  suppress 
rebellion/'  they  neither  admit  that  suppressing  rebel 
lion  places  the  country  in  the  attitude  of  making  war 
on  rebels,  nor  that  the  commander-in-chief  has  the  con 
stitutional  right  of  conducting  his  military  operations 
as  he  might  do  if  he  were  actually  at  war  (in  the  ordi 
nary  sense  of  the  term)  against  an  alien  enemy.  Mis 
apprehension  of  the  meaning  of  the  constitution  on 
this  subject  has  led  to  confusion  in  the  views  of  some 
members  of  Congress  during  the  last  session,  and  has  in 
no  small  degree  emasculated  the  efforts  of  the  majority 
in  dealing  with  the  questions  of  emancipation,  confisca 
tion,  and  enemy's  property.* 

Some  have  assumed  that  the  United  States  are  not 
at  war  with  rebels,  and  that  they  have  no  authority  to 
exercise  the  rights  of  war  against  them.  They  admit 
that  the  army  has  been  lawfully  called  into  the  field, 
and  may  kill  those  who  oppose  it;  they  concede 
that  rebels  may  be  taken  captive,  their  gunboats  may 
be  sunk,  and  their  property  may  be  seized ;  that  mar 
tial  law  may  be  declared  in  rebellious  districts,  and  its 
pains  and  penalties  may  be  enforced ;  that  every  armed 
foe  may  be  swept  out  of  the  country  by  military 
power.  Yet  they  entertain  a  vague  apprehension  that 
something  in  the  constitution  takes  away  from  these 
military  proceedings,  in  suppressing  rebellion  and  in 
resisting  the  attacks  of  the  rebels,  the  quality  and 
character  of  warfare.  Air  these  men  in  arms  are  not, 
they  fancy,  "  maldng  war"  When  the  citizens  of  Charles 
ton  bombarded  Fort  Su inter,  and  captured  property 
exclusively  owned  by  the  United  States,  it  is  not 

*  Reference  is  here  made  to  the  Session  of  1SG1-2. 


42  WAR   POWERS    OF    CONGRESS. 

denied  that  the  enemy  were  waging  war  against  the 
Union.  When  Major  Anderson  returned  their  fire  and 
attempted  to  defend  the  fort  and  its  guns  from  capture, 
it  is  denied  that  the  Union  was  waging  war  against 
the  enemy.  While  other  nations,  as  well  as  our  own, 
have  formally  or  informally  conceded  to  the  rebels  the 
character  and  the  rights  usually  allowed  to  belliger 
ents,  that  is,  to  persons  making  war  on  us,  we,  accord 
ing  to  the  technical  scruple  above  stated,  are  not  enti 
tled  to  the  rights  of  belligerents  against  them.  It 
therefore  becomes  important  to  define  the  meaning  of 
the  term  "  levying  war."  As  the  military  forces  of  this 
country  are  now  in  actual  service  to  suppress  rebellion, 
is  such  military  service  "  making  war  "  upon  the  rebels  ? 
And  if  war  actually  exists,  is  there  anything  in  the 
constitution  that  limits  or  controls  the  full  enjoyment 
and  exercise  by  the  government  of  the  rights  of  a 
belligerent  against  the  insurgents  ? 

IS  SUPPRESSING  REBELLION  BY  ARMS   MAKING  WAR  ON   CITIZENS   OF 
THE  UNITED   STATES  ? 

To  repel  invasion  by  arms,  all  admit,  is  entering 
upon  defensive  war  against  the  invader.  War  exists 
wherever  and  whenever  the  army  or  navy  is  in  ac 
tive  service  against  a  public  enemy.  When  rebels, 
having  organized  themselves  in  armies,  in  large  num 
bers,  overthrow  their  lawful  governments,  invade  the 
territory  of  States  not  consenting  thereto,  attack  our 
citizens  and  soldiers,  seize  and  confiscate  the  prop 
erty  not  of  our  government  only,  but  of  all  persons 
who  continue  loyal,  such  proceedings  constitute  a  civil 
war  in  all  its  terrors,  a  war  of  subjugation  and  of  con 
quest,  as  well  as  of  rebellion.  Operations  less  bloody 


WAR    POWERS    OF    CONGRESS.  43 

and  less  revolutionary  than  there  are  held  to  constitute 
the  levying  of  war,  as  those  terms  are  explained  in  the 
language  of  the  constitution.  War  is  levied  against 
the  United  States  wherever  and  whenever  the  crime 
of  treason  is  committed  (see  Constitution,  Art.  III., 
Sect.  3,  Cl.  3),  and  under  that  clause,  as  interpreted 
by  the  Supreme  Court,,  "  war  is  levied"  when  there 
exists  a  combination,  resorting  to  overt  acts,  to  op 
pose  generally  the  execution  of  any  law  of  the  United 
States,  even  if  no  armed  force  be  used.  The  language 
of  the  Constitution  is  clear  and  express.  "  Treason 
shall  consist  only  in  levying  war  upon  the  United 
States,  or  in  giving  aid  and  comfort  to  the  enemy." 
If,  therefore,  any  person,  or  collection  of  persons,  have 
committed  the  crime  of  treason,  the  constitution  de 
clares  them  to  have  levied  ivar.  As  traitors  they  have 
become  belligerent,  or  war  levying  enemies. 

War  may  be  waged  against  the  government  or  by  the 
government;  it  may  be  either  offensive  or  defensive. 
Wherever  war  exists  there  must  be  two  parties  to  it. 
If  traitors  (belligerents  by  the  terms  of  the  constitu 
tion)  are  one  party,  the  government  is  the  other  party. 
If,  when  treason  is  committed,  any  body  is  at  war,  then 
it  follows  that  the  United  States  are  at  war.  The  in 
habitants  of  a  section  of  this  country  have  issued  a  mani 
festo  claiming  independence ;  they  have  commenced 
hostilities  on  land  and  sea  to  maintain  it ;  they  have 
invaded  territory  of  peaceful  and  loyal  sections  of  the 
Union  ;  they  have  seized  and  confiscated  ships,  arsenals, 
arms,  forts,  public  and  private  property  of  our  govern 
ment  and  people,  and  have  killed,  captured,  and  im 
prisoned  soldiers  and  private  citizens.  Of  the  million  of 


44  WAR    POWERS    OF    CONGRESS. 

men  in  arms,  are  those  on   one   side  levying  war,  and 
are  those  opposed  to  them  not  levying  war  ? 

As  it  takes  two  parties  to  carry  on  war,  either  party 
may  begin  it.  That  party  which  begins  usually  de 
clares  war.  But  when  it  is  actually  begun,  the  party 
attacked  is  as  much  at  war  as  the  party  who  made  the 
attack.  The  United  States  are  AT  WAR  with  rebels,  in 
the  strictly  legal  and  constitutional  sense  of  the  term, 
and  have  therefore  all  the  rights  against  them  which  fol 
low  from  a  state  of  war,  in  addition  to  those  which  are  de 
rived  from  the  fact  that  the  rebels  are  also  subjects. 

KEBELS  MAY  BE   TREATED  AS  BELLIGERENTS  AND  AS   SUBJECTS. 

Wars  may  be  divided  into  two  classes,  foreign  and 
civil.  In  all  civil  wars  the  government  claims  the  bel 
ligerents,  on  both  sides,  as  subjects,  and  has  the  legal 
right  to  treat  the  insurgents  both  as  subjects  and  as 
belligerents ;  and  they  therefore  may  exercise  the  full 
and  untrammelled  powers  of  war  against  their  subjects, 
or  they  may,  in  their  discretion,  relieve  them  from  any 
of  the  pains  and  penalties  attached  to  either  of  these 
characters:11  The  right  of  a  country  to  treat  its  rebel 
lious  citizens  both  as  belligerents  and  as  subjects  has  long 
been  recognized  in  Europe,  and  by  the  Supreme  Court 
of  the  United  States.f  In  the  civil  war  between  St. 
Domingo  and  France,  such  rights  were  exercised,  and 
were  recognized  as  legitimate  in  Rose  v.  Himely,  4 
Cranch,  272.  So  in  Cherriot  v.  Foiissatt,  3  Binney,  252. 
In  Dobrie  v.  Napier,  3  Scott  E,  225,  it  was  held  that  a 
blockade  of  the  coast  of  Portugal,  by  the  Queen  of 
that  country,  was  lawful,  and  a  vessel  was  condemned 
as  a  laivful  prize  for  running  the  blockade.  The  cases 

*  Note  to  the  Forty-third  Edition.  —  See  Mauran  v.  Insurance  Company,  0  Wallace,  14,. 
and  other  cases  recently  decided  by  the  Supreme  Court ;  also  Note  ou  "  The  Right  of  Cap 
ture  of  Enemy's  Property,"  p.  451.  f  Sec  Note  A,  p.  215. 


WAR    POWERS    OF    CONGRESS.  45 

of  the  jSantisima  Trinidad,  7  Wheat.  306,  and  United 
States  v.  Palmer,  3  W.  635,  confirm  this  doctrine.  By 
the  terms  of  the  constitution  defining  treason,  a  traitor 
must  ~be  a  subject  and  a  belligerent,  and  none  but  a  belliger 
ent  subject  can  be  a  traitor. 

The  government  have  in  fact  treated  the  insurgents 
as  belligerents  on  several  occasions,  without  recognizing 
them  in  express  terms  as  such.  They  have  received 
the  capitulation  of  rebels  at  Hatteras,  as  prisoners  of 
war,  in  express  terms,  and  have  exchanged  prisoners 
of  war  as  such,  and  have  blockaded  the  coast  by 
military  authority,  and  have  officially  informed  other 
nations  of  such  blockade,  and  of  their  intention  to 
make  it  effective,  under  the  present  law  of  nations. 
They  have  not  exercised  their  undoubted  right  to 
repeal  the  laws  making  either  of  the  blockaded  har 
bors  ports  of  entry.  They  have  relied  solely  on  their 
belligerent  rights,  under  the  law  of  nations.* 

Having  thus  the  full  powers  and  right  of  making 
and  carrying  on  war  against  rebels,  both  as  subjects 
and  as  belligerents,  this  right  frees  the  President  and 
Congress  from  the  difficulties  which  might  arise  if 
rebels  could  be  treated  only  as  SUBJECTS,  and  if  war 
could  not  be  waged  upon  them.  If  conceding  to  rebels 
the  privileges  of  belligerents  should  relieve  them  from 
some  of  the  harsher  penalties  of  treason,  it  will  subject 
them  to  the  liabilities  of  the  belligerent  character. 
The  privileges  and  the  disadvantages  are  correlative. 
But  it  is  by  no  means  conceded  that  the  government 
may  not  exercise  the  right  of  treating  the  same  rebels 
both  as  subjects  and  as  belligerents.  The  constitution 

*  Note  to  the  Forty-third  Edition.  —  See  cases  decided  in  the  Supreme  Court,  printed  in 
the  Appendix.  See  Note  A,  p.  215.  Also,  T/is  Severe,  24  Law  Rep.  270;  Amy  Warwick,  Ib. 
335-394 ;  Tlie  Brilliant,  1 1  Am.  Law  Rep.  334 ;  S.  C.  2  Black.  035 ;  Cole  v.  Mer.  Mut.  Ins.  Co. 
13  Am.  Law  Reg.  27;  Hiawatha,  IS  Leg.  Int.  232;  The  F.  W.  Johnson,  Ib.  334;  also,  Note  on 
the  "  Right  of  Capture,"  p.  451. 


46  WAR    POWERS    OF    CONGRESS. 

defines  a  rebel  who  commits  treason  as  one  who  u  levies 
war "  on  the  United  States ;  and  the  laws  punish  this 
highest  of  crimes  with  death,  thus  expressly  treating 
the  same  person  as  subject  and  as  belligerent.  Those  who 
save  their  necks  from  the  halter  by  claiming  to  be 
treated  as  prisoners  of  war,  and  so  protect  them 
selves  under  the  shield  of  belligerent  rights,  must  bear 
the  weight  of  that  shield,  and  submit  to  the  legal  con 
sequences  of'  the  character  they  claim.  They  cannot 
sail  under  two  flags  at  the  same  time.  But  a  rebel 
does  not  cease  to  be  a  subject  because  he  has  turned 
traitor.  The  constitution  expressly  authorizes  Congress 
to  pass  laws  to  punish  traitor — that  is,  belligerent  — 
subjects ;  and  suppressing  rebellion  by  armed  force  is 
making  war.  Therefore  the  war  powers  of  government 
give  full  belligerent  rights  against  rebels  in  arms. 

THE   LAW  'OF   NATIONS   IS   ABOVE   THE   CONSTITUTION.* 

Having  shown  that  the  United  States  being  actually 
engaged  in  civil  war,  —  in  other  words,  having  become  a 
belligerent  power,  without  formal  declaration  of  war,  — 
it  is  important  to  ascertain  what  some  of  the  rights  of 
belligerents  are,  according  to  the  law  of  nations.  It  will 
be  observed  that  the  law  of  nations  is  above  the  con^ 
stitution  of  any  government;  and  no  people  would  be 
justified  by  its  peculiar  constitution  in  violating  the 
rights  of  other  nations.  Thus,  if  it  had  been  provided 
in  the  Articles  of  Confederation,  or  in  the  present  con 
stitution,  that  all  citizens  should  have  the  inalienable 
right  to  practise  the  profession  of  piracy  upon  the  ships 
and  property  of  foreign  nations,  or  that  they  should  be 
lawfully  empowered  to  make  incursions  into  England, 
France,  or  other  countries,  and  seize  by  force  and  bring 

*  Note  to  Forty-third  Edition.  —  See  U.  S.  v.  Moreno,  1  Wallace,  400.    Appendix,  p.  531 


WAR   POWERS    OF    CONGRESS.  47 

home  such  men  and  women  as  they  should  select,  and, 
if  these  privileges  should  be  put  in  practice,  England 
and  France  would  be  justified  in  treating  us  as  a  nest 
of  pirates,  or  a  band  of  marauders  and  outlaws.  The 
whole  civilized  world  would  turn  against  us,  and  we 
should  justly  be  exterminated.  An  association  or 
agreement  on  our  part  to  violate  the  rights  of  others, 
by  whatever  name  it  may  be  designated,  whether  it  be 
called  a  constitution,  or  league,  or  conspiracy,  or  a  do 
mestic  institution,  is  no  justification,  under  the  law  of 
nations,  for  illegal  or  immoral  acts. 

INTERNATIONAL    BELLIGERENT    RIGHTS    ARE    DETERMINED    BY    THE 
LAW    OF  NATIONS. 

To  determine  what  are  the  rights  of  different  nations 
when  making  war  upon  each  other,  we  look  only  to 
the  law  of  nations.  The  peculiar  forms  or  rights  of 
the  subjects  of  one  of  these  war-making  parties  under 
their  own  government  give  them  no  rights  over  their 
enemy  other  than  those  which  are  sanctioned  by  in 
ternational  law.  In  the  great  tribunal  of  nations,  there 
is  a  "  higher  law  "  than  that  which  has  been  framed  by 
either  one  of  them,  however  sacred  to  each  its  own 
peculiar  laws  and  constitution  of  government  may  be. 

But  while  this  supreme  law  is  in  full  force,  and  is 
binding  on  all  countries,  softening  the  asperities  of  war, 
and  guarding  the  rights  of  neutrals,  it  is  not  conceded 
that  the  government  of  the  United  States,  in  a  civil 
war  for  the  suppression  of  rebellion  among  its  own  cit 
izens,  is  subject  to  the  same  limitations  as  though  the 
•  rebels  were  a  foreign  nation,  owing  no  allegiance  to 
the  country. 

With  this  caveat,  it  will  be  desirable  to  state  some 


of  the  rights  of  belligerents. 


NIV 


48  WAR   POWERS    OF   CONGRESS. 

BELLIGERENT   RIGHTS  OF  THE   GOVERNMENT. 

Congress  has  power  to  make  laws  authorizing  the 
capture  of  the  property  of  public  enemies  on  land  and 
water;  the  confiscation  of  their  real  and  personal  es 
tate  ;  and  the  military  government  of  the  inhabitants 
of  conquered  territory.*  As  the  property  of  all  nations 
has  an  equal  right  upon  the  high  seas  (the  highway  of 
nations),  in  order  to  protect  the  commerce  of  neutrals 
from  unlawful  interference,  it  is  necessary  that  ships  and 
cargoes  seized  on  the  ocean  should  be  brought  before 
some  prize  court,  that  it  may  be  judicially  determined 
whether  the  captured  vessel  and  cargo  were,  in  whole 
or  in  part,  enemy's  property  or  contraband  of  war. 
The  decision  of  any  prize  court,  according  to  the  law 
of  nations,  is  conclusive  against  all  the  world.  Where 
personal  property  of  the  enemy  is  captured  from  the 
enemy,  on  land,  in  the  enemy's  country,  no  decision 
of  any  court  is  necessary  to  give  a  title  thereto."}-  Cap 
ture  passes  the  title.  This  is  familiar  law  as  adminis 
tered  in  the  courts  of  Europe  and  America,  J 

BELLIGERENT   RIGHTS   CONFIRMED  BY  THE  CONSTITUTION. 

Some  persons  have  questioned  whether  title  passes  in 
this  country  by  capture  or  confiscation,  by  reason  of  some 
of  the  limiting  clauses  of  the  constitution ;  and  others 
have  gone  so  far  as  to  assert  that  all  the  proceedings 
under  martial  law,  such  as  capturing  enemy's  property, 
imprisonment  of  spies  and  traitors,  and  seizures  of  articles 
contraband  of  war,  and  suspending  the  habeas  corpus,  are 

*  Sec  Stat.  1801,  chap.  CO.  Also  the  case  of  Armstrong's  Foundry,  6  Wallace,  769; 
United  States  v.  Republican  Banner  Office,  11  Pitts,  Leg.  Jour.  153. 

t  Sec  Note  to  Forty-third  Edition,  p.  459.  —  This  distinction  between  prize  and  capture 
has  been  recognized  ( 1805)  by  the  Supreme  Court.  See  The.  Peterhoff,  p.  582.  In  The  Battle 
6  \Arallace,  49S,  the  court  say  (1807),  "  Capture  as  prize  of  war  jure  belli  overrides  all  pre 
vious  liens."  See  also  Coolidye  v.  Guthrie,  p.  591. 

J  Alexander  v.  Duke  of  Wellington,  2  Russ.  &  Mylne,  35.  Lord  Brougham  said  that 
military  prize  rests  upon  the  same  principles  of  law  as  prize  at  sea,  though  in  general  no 
statute  passes  with  respect  to  it.  See  1  Kent's  Comm.  357. 


WAR    POWERS    OF  CONGRESS.  49 

in  violation  of  the  constitution,  which  declares  that  no 
man  shall  be  deprived  of  life,  liberty,  or  property  with 
out  due  process  of  law  ;  *  that  private  property  shall  not 
be  taken  for  public  use  without  just  compensation  ; •}• 
that  unreasonable  searches  and  seizures  shall  not  be 
made;!  that  freedom  of  speech  and  of  the  press  shall 
not  be  abridged  ;§  and  that  the  right  of  the  people  to 
keep  and  bear  arms  shall  not  be  infringed.  || 

THESE   PROVISIONS  JNTOT   APPLICABLE  TO  A  STATE   OF  WAR. 

If  these  rules  are  applicable  to  a  state  of  war,  then 
capture  of  property  is  illegal,  and  does  not  pass  a  title  ; 
no  defensive  war  can  be  carried  on;  no  rebellion  can 
be  suppressed ;  no  invasion  can  be  repelled ;  the  army 
of  the  United  States,  when  called  into  the  field,  can  do 
no  act  of  hostility.  Not  a  gun  can  be  fired  constitu 
tionally,  because  it  might  deprive  a  rebel  foe  of  his  life 
without  due  process  of  law  —  firing  guns  not  being 
deemed  "  due  process  of  law." 

Sect.  4  of  Art.  IY.  says,  that  "the  United  States  shall 
guarantee  to  every  State  in  this  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them 
against  invasion,  and  on  application'  of  the  legislature, 
or  of  the  Executive  (when  the  legislature  cannot  be 
convened)  against  domestic  violence." 

Art.  I.  Sect.  8,  gives  Congress  power  to  declare  war, 
raise  and  support  armies,  provide  and  maintain  a  navy ; 
to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrection  and  repel  in 
vasion  ;  to  provide  for  organizing,  arming,  and  disciplin 
ing  the  militia,  and  for  governing  such  part  of  them  as 
may  be  in  the  service  of  the  United  States. 

*  Constitutional  Amendments,  Art.  V.  t  Ibid.  Art-  v- 

t  Ibid.  Art.  IV.  §  Ibid.  Art.  I.  II  Ibid.  Art.  II. 


50  WAR   POWERS    OF    CONGRESS. 

If  these  rules  above  cited  have  any  application  in  a 
time  of  war,  the  United  States  cannot  protect  each  of  the 
States  from  invasion  by  citizens  of  other  States,  nor 
against  domestic  violence  ;  nor  can  the  army,  or  militia, 
or  navy  be  used  for  any  of  the  purposes  for  which  the 
constitution  authorizes  or  requires  their  employment, 
If  all  men  have  the  right  to  "keep  and  bear  arms," 
what  right  has  the  army  of  the  Union  to  take  them 
away  from  rebels  ?  If  "  no  one  can  constitutionally 
be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law,"  by  what  right  does  government  seize 
and  imprison  traitors  ?  By  what  right  does  the  army 
kill  rebels  in  arms,  or  burn  up  their  military  stores  ? 
If  the  only  way  of  dealing  constitutionally  with  rebels 
in  arms  is  to  go  to  law  with  them,  the  President  should 
convert  his  army  into  lawyers,  justices  of  the  peace, 
and  constables,  and  serve  "  summonses  to  appear  and 
answer  to  complaints,"  instead  of  a  summons  to  surrender, 
He  should  send  "  GREETINGS  "  instead  of  sending  rifle  shot. 
He  should  load  his  caissons  with  "  pleas  in  abatement 
and  demurrers,"  instead  of  thirty-two  pound  shell  and 
grape  shot.  In  short,  he  should  levy  writs  of  execution, 
instead  of  levying  war.  On  the  contrary,  the  com- 
mander-in-chief  proposes  a  different  application  of  the 
due  process  of  law.  His  summons  is,  that  rebels  should 
lay  down  their  arms ;  his  pleas  are  batteries  and  gun 
boats  ;  his  arguments  are  hot  shot,  and  always  "  to  the 
point ; "  and  when  his  fearful  execution  is  "  levied  on 
the  body,"  all  that  is  left  will  be  for  the  undertaker. 

TRUE  APPLICATION    OF  THESE   CONSTITUTIONAL   GUARANTEES. 

The  clauses  which  have  been  cited  from  the  amend 
ments  to  the  constitution  were  intended  as  declarations 


WAR   POWERS    OF    CONGRESS.  51 

of  the  rights  of  peaceful  and  loyal  citizens,  and  safe 
guards  in  the  administration  of  justice  by  the  civil  tri 
bunals  ;  but  it  was  necessary,  in  order  to  give  the  gov 
ernment  the  means  of  defending  itself  against  domestic 
or  foreign  enemies,  to  maintain  its  authority  and  dig 
nity,  and  to  enforce  obedience  to  its  laws,  that  it  should 
have  unlimited  war  powers ;  and  it  must  not  be  for 
gotten  that  the  same  authority  which  provides  those 
safeguards,  and  guarantees  those  rights,  also  imposes 
upon  the  President  and  Congress  the  duty  of  so  carry 
ing  on  war  as  of  necessity  to  supersede  and  hold  in 
temporary  suspense  such  civil  rights  as  may  prove  in 
consistent  with  the  complete  and  effectual  exercise  of 
such  war  powers,  and  of  the  belligerent  rights  result 
ing  from  them.  The  rights  of  war  and  the  rights  of 
peace  cannot  coexist.  One  must  yield  to  the  other. 
Martial  law  and  civil  law  cannot  operate  at  the  same 
time  and  place  upon  the  same  subject  matter.  Hence 
the  constitution  is  framed  with  full  recognition  of  that 
fact ;  it  protects  the  citizen  in  peace  and  in  war ;  but 
his  rights  enjoyed  under  the  constitution,  in  time  of 
peace  are  different  from  those  to  which  he  is  entitled 
in  time  of  war. 


CIVIL  RIGHTS  OF  LOYAL    CITIZENS  IN  LOYAL    DISTRICTS  ARE   MODI 
FIED  BY  THE   EXISTENCE   OF  WAR. 

While  war  is  raging,  many  of  the  rights  held  sacred 
by  the  constitution  —  rights  which  cannot  be  violated  by 
any  acts  of  Congress  —  may  and  must  be  suspended  and 
held  in  abeyance.  If  this  were  not  so,  the  government 
might  itself  be  destroyed;  the  army  and  navy  might 
be  sacrificed,  and  one  part  of  the  constitution  would 
NULLIFY  the  rest. 


52  WAR   POWERS    OF    CONGRESS. 

If  freedom  of  speech  cannot  be  suppressed,  spies  can 
not  be  caught,  imprisoned,  and  hung. 

If  freedom  of  the  press  cannot  be  interfered  with,  all 
our  military  plans  may  be  betrayed  to  the  enemy. 

If  no  man  can  be  deprived  of  life  without  trial  by  jury. 
a  soldier  cannot  slay  the  enemy  in  battle. 

If  enemy's  property  cannot  be  taken  without  "  due 
process  of  law,"  how  can  the  soldier  disarm  his  foe  and 
seize  his  weapons  ? 

If  no  person  can  be  arrested,  sentenced,  and  shot,  with 
out  trial  by  jury  in  the  county  or  State  where  his  crime 
is  alleged  to  have  been  committed,  how  can  a  deserter 
be  shot,  or  a  spy  be  hung,  or  an  enemy  be  taken  prisoner  ? 
*  It  has  been  said  that  •"  amidst  arms  the  laivs  are  silent.1' 
It  would  be  more  just  to  say,  that  while  war  rages,  the 
rights,  which  in  peace  are  sacred,  must  and  do  give  way 
to  the  higher  right,  the  right  of  public  safety,  the  right 
which  the  country,  the  whole  country,  claims  to  pro 
tection  from  its  enemies,  domestic  and  foreign,  from 
spies,  from  conspirators,  and  from  traitors.*  The  sov 
ereign  and  almost  dictatorial  military  powers,  existing 
only  in  actual  war,  ending  when  war  ends,  to  be  used 
in  self-defence,  and  to  be  laid  down  w7hen  no  longer 
necessary,  are,  while  they  last,  as  lawful,  as  constitu- 
I  tional,  as  sacred,  as  the  administration  of  justice  by 
^judicial  courts  in  time  of  peace.  They  may  be  dan 
gerous;  war  itself  is  dangerous;  but  danger  does  not 
make  them  unconstitutional  If  the  commander-in-chief 
orders  his  soldiers  to  seize  the  arms  and  ammunition  of 

*  "  Among  absolute  international  rights,  one  of  the  most  essential  and  important,  and 
that  which  lies  at  the  root  of  all  the  rest,  is  the  right  of  self-preservation.  It  is  not  only 
a  right  in  respect  to  other  States,  but  it  is  a  duty  in  respect  to  its  own  members,  and  the 
most  solemn  and  important  which  a  State  owes  to  them."—  Wheaton,  pp.  115,  110. 


WAR   POWERS    OF    CONGRESS.  53 

the  rebels ;  to  capture  their  persons  ;  to  shell  out  their 
batteries ;  to  hang  spies  or  shoot  deserters  ;  to  destroy 
insurgents  waging  open  battle ;  to  send  traitors  to 
forts  and  prisons ;  to  stop  the  press  from  aiding  and 
comforting  the  enemy  by  betraying  our  military  plans ; 
to  arrest  within  our  lines,  or  wherever  they  can  be 
seized,  persons  against  whom  there  is  reasonable  evi 
dence  of  their  having  aided  or  abetted  the  rebels,  or  of 
intending  so  to  do,  the  pretension  that  he  thereby 
violates  the  constitution  is  not  only  erroneous,  but  it 
is  a  plea  in  behalf  of  treason.  To  set  up  the  rules 
of  civil  administration  as  overriding  and  controlling 
the  laws  of  war,  is  to  aid  and  abet  the  enemy.  It 
falsifies  the  clear  meaning  of  the  constitution,  which 
not  only  gives  the  power,  but  makes  it  the  plain  duty 
of  the  President,  to  wage  war,  when  lawfully  declared 
or  recognized,  against  the  public  enemy  of  his  country. 
The  restraints  to  which  he  is  subject,  when  in  war,  are 
not  found  in  municipal  regulations,  which  can  be  ad 
ministered  only  in  peace,  but  in  the  laws  and  usages 
of  nations  regulating  the  conduct  of  war. 

WHETHER    BELLIGERENTS  SHALL  BE  ALLOWED  CIVIL  RIGHTS  UNDER 
THE  CONSTITUTION    DEPENDS    UPON  THE  POLICY  OF   GOVERNMENT.* 

None  of  these  rights,  guaranteed  to  peaceful  citizens,  by  the 
constitution  belong  to  them  after  then  have  become  belligerents 
against  their  own  government.  They  thereby  forfeit  all 
protection  under  that  sacred  charter  which  they  have 
thus  sought  to  overthrow  and  destroy.  One  party  to 
a  contract  cannot  break  it  and  at  the  same  time  hold 
the  other  to  perform  it.  It  is  true  that  if  the  govern- 

*  See  Note  to  Forty-third  Edition,  p.  425,  and  Index,  title  "  Civil  UigUts." 


54  WAR   POWERS    OF    CONGRESS. 

ment  elects  to  treat  them  as  subjects  and  to  hold  them 
liable  only  to  penalties  for  violating  statutes,  it  must, 
concede  to  them  all  the  legal  rights  and  privileges 
which  other  citizens  would  have  when  under  similar 
accusations ;  and  Congress  must  be  limited  to  the  pro 
visions  of  the  constitution  in  legislation  against  them 
as  citizens.  But  the  fact  that  war  is  waged  by  these 
miscreants  releases  the  government  from  all  obligation 
to  make  that  concession,  or  to  respect  the  rights  to  life, 
liberty,  or  property  of  its  enemy,  because  the  constitu 
tion  makes  it  the  duty  of  the  President  to  prosecute 
war  against  them  in  order  to  suppress  rebellion  and 
repel  invasion. 

THE  CONSTITUTION  ALLOWS  CAPTURE  AND  CONFISCATION. 

Nothing  in  the  constitution  interferes  with  the  bel 
ligerent  right  of  confiscation  of  enemy  property.  The 
right  to  confiscate  is  derived  from  a  state  of  war.  It  is 
one  of  the  rights  of  war.  It  originates  in  the  principle 
of  self-preservation.  It  is  the  means  of  weakening  the 
enemy  and  strengthening  ourselves.  The  right  of  con 
fiscation  belongs  to  the  government  as  the  necessary 
consequence  of  the  power  and  duty  of  making  war  — 
offensive  or  defensive.  Every  capture  of  enemy  am 
munition  or  arms  is,  in  substance,  a  confiscation,  with 
out  its  formalities.  To  deny  the  right  of  confiscation 
is  to  deny  the  right  to  make  war,  or  to  conquer  an 
enemy. 

If  authority  were  needed  to  support  the  right  of  con 
fiscation,  it  may  be  found  in  3  Dallas,  227 ;  Vat.  lib. 
Hi.,  ch.  8,  sect.  188;  lib.  iii.,  ch.  9,  sect.  161;  Smith  v. 
Mansfield,  Cranch,  306-7;  Cooper  v.  Telfair,  4  Dallas; 
Brotvn  v.  U.  £,  8  Cranch,  110,  228,  229. 


WAR   POWERS    OF    CONGRESS.  55 

The  following  extract  is  from  1  Kent's  Com.,  p.  59 :  — 

"But  however  strong  the  current  of  authority  in  favor  of  the  mod- 
•erri  and  milder  construction  of  tfie  rule  of  national  law  on  this  subject, 
the  point  seems  to  be  no  longer  open  for  discussion  in  this  country ; 
and  it  has  become  definitively  settled  in  favor  of  the  ancient  and 
sterner  rule  by  the  Supreme  Court  of  the  United  States.  Brown  v. 
United  States,  8  Cranch,  110  ;  ibid.  228,  229. 

"  The  effect  of  war  on  British  property  found  in  the  United  States 
on  land,  at  the  commencement  of  the  war,  was  learnedly  discussed 
and  thoroughly  considered  in  the  case  of  Brown,  and  the  Circuit  Court 
of  the  United  States  at  Boston  decided  as  upon  a  settled  rule  of  the 
law  of  nations,  that  the  goods  of  the  enemy  found  in  the  country,  and 
all  vessels  and  cargoes  found  afloat  in  our  ports  at  the  commencement 
of  hostilities,  were  liable  to  seizure  and  confiscation  ;  and  the  exercise 
of  the  right  vested  in  the  discretion  of  the  sovereign  of  the  nation. 

"  When  the  case  was  brought  up  on  appeal  before  the  Supreme 
Court  of  the  United  States,  the  broad  principle  was  assumed  that  war 
gave  to  the  sovereign  the  full  right  to  take  the  persons  and  confiscate 
the  property  of  the  enemy  wherever  found ;  and  that  the  mitigations 
of  this  rigid  rule,  which  the  wise  and  humane  policy  of  modern  times 
had  introduced  into  practice,  might,  more  or  less,  affect  the  exercise 
of  the  right,  but  could  not  impair  the  right  itself. 

"  Commercial  nations  have  always  considerable  property  in  posses 
sion  of  their  neighbors ;  and  when  war  breaks  out,  the  question,  What 
shall  be  done  with  enemy  property  found  in  the  country  ?  is  one  rather 
of  policy  than  of  law,  and  is  one  properly  addressed  to  the  considera 
tion  of  the  legislature,  and  not  to  the  courts  of  law. 

"  The  strict  right  of  confiscation  of  that  species  of  property  existed 
in  Congress,  and  without  a  legislative  act  authorizing  its  confiscation 
it  could  not  be  judicially  condemned  ;  and  the  act  of  Congress  of  1812 
declaring  war  against  Great  Britain  was  not  such  an  act.  Until  some 
statute  directly  applying  to  the  subject  be  passed,  the  property  would 
continue  under  the  protection  of  the  law,  and  might  be  claimed  by  the 
British  owner  at  the  restoration  of  peace. 

"  Though  this  decision  established  the  right  contrary  to  much  of 
modern  authority  and  practice,  yet  a  great  point  was  gained  over  the 
rigor  and  violence  of  the  ancient  doctrine,  by  making  the  exercise  of 
the  right  depend  upon  a  special  act  of  Congress." 

From  the  foregoing  authorities,  it  is  evident  that  the 


56  WAR   POWERS    OF    CONGRESS. 

government  has  a  right,  as  a  belligerent  power,  to  cap 
ture  or  to  confiscate  any  and  all  the  personal  property 
of  the  enemy ;  that  there  is  nothing  in  the  constitution 
which  limits  or  controls  the  exercise  of  that  right;  and 
that  capture  in  war,  or  confiscation  by  law,  passes  a 
complete  title  to  the  property  taken ;  and  that,  if  judi 
cial  condemnation  of  enemy  property  be  sought,  in 
order  to  pass  the  title  to  it  by  formal  decree  of  courts, 
by  mere  seizure,  arid  without  capture,  the  confiscation 
must  have  been  declared  by  act  of  Congress,  a  mere 
declaration  of  war  not  being  ex  vi  termini  sufficient  for 
that  purpose.  The  army  of  the  Union,  therefore,  have 
the  right,  according  to  the  law  of  nations,  and  of  the 
constitution,  to  obtain  by  capture  a  legal  title  to  all  the 
personal  property  of  the  enemy  they  get  possession 
of,  whether  it  consist  of  arms,  ammunition,  provisions, 
slaves,  or  any  other  thing  which  the  law  treats  as  per 
sonal  property.  No  judicial  process  is  necessary  to 
give  the  government  full  title  thereto,  and  when  once 
captured,  the  government  may  dispose  of  the  property 
as  absolute  owner  thereof,  in  the  same  manner  as 
though  the  title  passed  by  bill  of  sale :  and  Congress 
have  plenary  authority  to  pass  such  confiscation  laws 
against  belligerent  enemies  as  they  deem  for  the  public 
good. 

A   SEVERE   RULE  OF  BELLIGERENT  LAW. 

"  Property  of  persons  residing  in  the  enemy's  country 
is  deemed,  in  law,  hostile,  and  suoject  to  condemnation 
without  any  evidence  as  to  the  opinions  or  predilections 
of  the  owner."  If  he  is  the  subject  of  a  neutral,  or  a 
citizen  of  one  of  the  belligerent  States,  and  has  ex 
pressed  no  disloyal  sentiments  towards  his  country, 


WAR   POWERS    OF  CONGRESS.  57 

still  his  residence  in  the  enemy's  country  impresses 
upon  his  property,  engaged  in  commerce  and  found 
upon  the  ocean,  a  hostile  character,  and  subjects  it  to 
condemnation.  This  familiar  principle  of  law  is  sanc 
tioned  in  the  highest  courts  of  England  and  of  the 
United  States,  and  has  been  decided  to  apply  to  cases 
of  civil  as  well  as  of  foreign  war.* 

Thus  personal  property  of  every  kind,  ammunition, 
provisions,  contraband,  or  slaves,  may  be  lawfully 
seized,  whether  of  loyal  or  disloyal  citizens,  and  is  by  law 
presumed  hostile,  and  liable  to  condemnation,  if  captured 
within  the  rebellious  districts.  This  right  of  seizure  and 
condemnation  is  harsh,  as  all  the  proceedings  of  war 
are  harsh,  in  the  extreme,  but  it  is  nevertheless  lawful. 
It  would  be  harsh  to  kill  in  battle  a  loyal  citizen  who, 
having  been  impressed  into  the  ranks  of  the  rebels,  is 
made  to  fight  against  his  country ;  yet  it  is  lawful  to 
do  so. 

Against  all  persons  in  arms,  and  against  all  property 
situated  and  seized  in  rebellious  districts,  the  laws  of 
war  give  the  government  full  belligerent  rights;  and 
when  the  army  and  navy  are  once  lawfully  called  out, 
there  are  no  limits  to  the  war-making  power  of  the 
President,  other  than  the  law  of  nations,  and  such  rules 
as  Congress  may  pass  for  their  regulation.f 

"  The  statute  of  1807,  chap.  39,"  says  a  learned  judge, 
"  provides  that  whenever  it  is  lawful  for  the  President 
to  call  forth  the  militia  to  suppress  an  insurrection,  he 
may  employ  the  land  and  naval  forces  for  that  purpose. 
The  authority  to  use  the  army  is  thus  expressly  con- 

*  The  Venus,  8  Cranch  Rep.;  The  Hoop,  1  Robinson,  196,  and  cases  there  cited.  TJie 
Amy  Warwick,  opinion  of  Judge  Sprague. 

f  Sec  Notes  to  Forty- third  Edition,  title  "  War  Powers,"  pp.  390-392;  and  cases  in  the 
Appendix. 

8 


58  WAR    POWERS    OF    CONGRESS. 

firmed,  but  the  manner  in  which  they  are  to  be  used  is 
not  prescribed.  That  is  left  to  the  discretion  of  the 
President,  guided  by  the  usages  and  principles  of  civil 
ized  war." 

As  a  matter  of  expediency,  Congress  may  direct  that 
no  property  of  loyal  citizens,  residing  in  disloyal  States, 
should  be  seized  by  military  force,  without  compensa 
tion.  This  is  an  act  of  grace,  which,  though  not  re 
quired  by  the  laws  of  war,  may  well  be  granted.  The 
commander-in-chief  may  also  grant  the  same  indul 
gence.  But  the  military  commanders  are  always  at 
liberty  to  seize,  in  an  enemy's  country,  whatever  prop 
erty  they  deem  necessary  for  the  sustenance  of  troops, 
or  military  stores,  whether  it  is  the  property  of 
friend  or  enemy ;  it  being  usual,  however,  to  pay  for 
all  that  is  taken  from  friends.  These  doctrines  have 
been  carried  into  effect  in  Missouri.* 

The  President  having  adopted  the  policy  of  pro 
tecting  loyal  citizens  wherever  they  may  be  found,  all 
seizure  of  their  property,  and  all  interference  with  them 
have  so  far  been  forborne.  But  it  should  be  understood 
that  such  forbearance  is  optional,  not  compulsory.  It 
is  done  from  a  sense  of  justice  and  humanity,  not  be 
cause  law  or  constitution  renders  it  inevitable.  And 
this  forbearance  is  not  likely  to  be  carried  to  such  an 
extent  as  to  endanger  the  success  of  the  armies  of  the 
Union,  nor  to  despoil  them  of  the  legitimate  fruits  of 
victory  over  rebels. 

BELLIGERENT  RIGHT  TO   CONFISCATE   ENEMY'S   REAL   ESTATE. 

The  belligerent  right  of  the  government  to  confiscate 
enemy's  real  estate,  situated  in  this  country,  can  hardly  admit 

*  Sec  Note  to  Forty-third  Edition,  title  "Capture,"  p.  451;  "Slaves  in  the  Army," 
p.  105. 


WAR    POWERS    OF    CONGRESS.  59 

of  a  question.  The  title  to  no  inconsiderable  part  of 
the  real  estate  in  each  of  the  original  States  of  the 
Union,  rests  upon  the  validity  of  confiscation  acts 
passed  by  our  ancestors  against  loyal  adherents  to  the 
crown.  Probably  none  of  these  States  failed  to  pass 
and  apply  these  laws.  English  and  American  acts  of 
confiscation  were  recognized  by  the  laws  of  both  coun 
tries,  and  their  operation  modified  by  treaties ;  their 
validity  never  was  denied.  The  only  authority  which  either 
of  the  States  or  colonies  ever  had  for  passing  such 
laws  was  derived  from  the  fact  that  they  were  bel 
ligerents. 

•It  will  be  observed  that  the  question  as  to  the  belli- 
gerent  right  to  confiscate  enemy's  real  estate  situated 
in  the  United  States,  is  somewhat  different  from  the 
question  whether  in  conquering  a  foreign  country  it 
will  be  lawful  to  confiscate  the  private  real  estate  of 
the  enemy. 

It  is  unusual,  in  case  of  conquest  of  a  foreign  country, 
for  the  conqueror  to  do  more  than  to  displace  its  sov 
ereign,  and  assume  dominion  over  the  country.  On  a 
mere  change  of  sovereignty  of  the  country,  it  would  be 
harsh  and  severe  to  confiscate  the  private  property 
and  annul  the  private  rights  of  citizens  generally.  And 
mere  conquest  of  a  country  does  not  of  itself  operate  as 
confiscation  of  enemy's  property ;  nor  does  the  cession 
of  a  country  by  one  nation  to  another  destroy  private 
rights  of  property,  or  operate  as  confiscation  of  per 
sonal  or  real  estate.*  So  it  was  held  by  the  Supreme 
Court  in  the  case  of  the  transfer  by  treaty  of  Florida 
to  the  United  States ;  but  it  was  specially  provided  in 
that  treaty  that  private  property  should  not  be  inter- 

*  United  States  v.  Juan  Richmond,  7  Peters,  51. 


60  WAR    POWERS    OF    CONGRESS. 

fered  with.  The  forbearance  of  a  conqueror  from  con 
fiscating  the  entire  property  of  a  conquered  people  is 
usually  founded  in  good  policy,  as  well  as  in  humanity. 
The  object  of  foreign  conquest  is  to  acquire  a  perma 
nent  addition  to  the  power  and  territory  of  the  con 
queror.  This  object  would  be  defeated  by  stripping 
his  subjects  of  every  thing.  The  case  is  very  differ 
ent  where  confiscation  will  only  break  up  a  nest  of 
traitors,  and  drive  them  away  from  a  country  they  have 
betrayed. 

Suppose  that  certain  Englishmen  owned  large  tracts 
of  real  estate  in  either  of  the  United  States  or  territo 
ries  thereof,  and  war  should  break  out ;  would  any  one 
doubt  the  right  of  Congress  to  pass  a  law  confiscating 
such  estate  ? 

The  laws  of  nations  allow  either  belligerent  to  seize 
and  appropriate  whatever  property  of  the  enemy  it  can 
gain  possession  of;  and.  of  all  descriptions  of  property 
which  government  could  safely  permit  to  be  owned  or 
occupied  by  an  alien  enemy,  real  estate  within  its  own 
dominion  would  be  the  last. 

No  distinction  can  be  properly  or  legally  made  be 
tween  the  different  kinds  of  enemy  property,  whether 
real,  personal,  or  mixed,  so  far  as  regards  their  liability 
to  confiscation  by  the  war  power.  Lands,  money, 
slaves,  debts,  may  and  have  been  subject  to  this  lia 
bility.  The  methods  of  appropriating  and  holding 
them  are  different  —  the  result  is  the  same.  And, 
considering  the  foundation  of  the  right,  the  object  for 
which  it  is  to  be  exercised,  and  the  effects  resulting 
from  it,  there  is  nothing  in  law,  or  in  reason,  which 
would  indicate  why  one  can  and  the  other  cannot  be 
taken  away  from  the  enemy. 


WAR   POWERS    OF    CONGRESS.  61 

In  Broivn  v.  United  States,  8  Cranch,  p.  123,  the  Supreme 
Court  of  the  United  States  say,  — 

"  Respecting  the  power  of  government,  no  doubt  is  entertained. 
That  war  gives  to  the  sovereign  the  full  right  to  take  the  persons  and 
confiscate  the  property  of  the  enemy,  wherever  found,  is  conceded. 
The  mitigations  of  this  rule,  which  the  humane  and  wise  policy  of 
modern  times  has  introduced  into  practice,  will  more  or  less  affect  the 
exercise  of  this  right,  but  cannot  impair  the  right  itself —  that  remains 
undiminished ;  and  when  the  sovereign  authority  shall  choose  to  bring 
it  into  operation,  the  judicial  department  must  give  effect  to  its  will." 

"  It  may  be  considered,"  they  say,  "  as  the  opinion  of  all  who  have 
written  on  the  jus  belli,  that  war  gives  the  right  to  confiscate,"  &o. 

Chancellor  Kent  says,  — 

"  When  war  is  duly  declared,  it  is  not  merely  a  war  between,  tnis 
and  the  adverse  government  in  their  political  characters.  Every 
man  is,  in  judgment  of  law,  a  party  to  the  acts  of  his  own  govern 
ment,  and  a  war  between  the  government  of  two  nations  is  a  war 
between  all  the  individuals  of  the  one  and  all  the  individuals  of  which 
the  other  nation  is  composed.  Government  is  the  representative  of  the 
will  of  the  people,  and  acts  for  the  whole  society.  This  is  the  theory 
of  all  governments,  and  the  best  writers  on  the  law  of  nations  concur 
in  the  doctrine,  that  when  the  sovereign  of  a  state  declares  war 
against  another  sovereign,  it  implies  that  the  whole  nation  declares 
war,  and  that  all  the  subjects  of  the  one  are  enemies  to  all  the  subjects 
of  the  other." 

"  Very  important  consequences  concerning  the  obligations  of  sub 
jects  are  deducible  from  this  principle.  When  hostilities  have  com 
menced,  the  first  objects  that  present  themselves  for  detention  and 
capture  are  the  persons  and  property  of  the  enemy  found  within  the 
territory  on  the  breaking  out  of  war.  According  to  strict  authority,  a 
state  has  a  right  to  deal  as  an  enemy  with  persons  and  property  so 
found  within  its  power,  and  to  confiscate  the  property  and  detain  the 
persons  as  prisoners  of  war."  * 

*  1  Kent's  Com.,  p.  55.    Sec  also  Grotius,  B.  III.  ch.  3,  sect.  9;  cb.  4,  sect.  8.    Burlama- 
qui,  Part  IV.  ch.  4,  sect.  20.    Vattcl,  B.  III.  ch.  5,  sect.  70. 


62  WAR    POWERS    OF    CONGRESS. 

We  thus  see,'  that  by  the  law  of  nations,  by  the  prac 
tice  of  our  own  States,  by  the  decisions  of  courts,  by 
the  highest  authority  of  legal  writers,  and  by  the  deduc 
tions  of  reason,  there  can  be  no  question  of  the  consti 
tutional  right  of  confiscation  of  enemy  real  estate  of 
which  we  may  gain  possession.  And  the  legal  pre 
sumption  that  real  estate  situated  in  rebellious  districts 
is  enemy  property,  would  seem  to  be  as  well  founded 
as  it  is  in  case  of  personal  property .f 

It  is  for  the  government  to  decide  how  it  shall 
use  its  belligerent  right  of  confiscation.  The  num 
ber  of  slaveholders  in  the  rebellious  States,  who 
are  the  principal  land  owners  in  that  region,  and 
who,  are  the  chief  authors  and  supporters  of  this  rebel 
lion,  constitute,  all  told,  less  than  one  in  one  hundred 
and  twenty  eight  of  the  people  of  the  United  States, 
and  less  than  one  fiftieth  part  of  the  inhabitants  of  their 
own  districts,  being  far  less  in  proportion  to  the 
whole  population  of  the  country  than  the  old  tones 
in  the  time  of  the  revolution  were  to  the  colonists.J 

MILITARY  GOVERNMENT  UNDER  MARTIAL  LAW. 

In  addition  to  the  right  of  confiscating  the  property 
of  the  enemy,  a  state  of  war  also  confers  upon  the 
government  other  not  less  important  belligerent  rights, 
and  among  them,  the  right  to  seize  and  hold  conquered 
territory  by  military  force,  and  of  instituting  and  main 
taining  military  government  over  it,  thereby  suspend 
ing  in  part,  or  in  the  whole,  the  ordinary  civil  adminis 
tration.  The  exercise  of  this  right  has  been  sanctioned 
by  the  decision  of  the  Supreme  Court  of  the  United 

t  See  page  59. 

\  In  confirmation  of  those  views  of  the  War  Powers  of  Congress,  sec  the  chapter  on 
the  War  Powers  of  the  President,  and  Notes  thereon. 


WAR    POWERS    OF    CONGRESS.  63 

States,  in  the  case  of  California,*  And  it  is  founded  upon 
well-established  doctrines  of  the  law  of  nations.  Without 
the  right  to  make  laws  and  administer  justice  in  con 
quered  territory,  the  inhabitants  would  be  plunged  into 
anarchy.  The  old  government  being  overthrown,  and  no 
new  one  being  established,  there  would  be  none  to  whom 
allegiance  would  be  clue  —  none  to  restrain  lawlessness, 
none  to  secure  to  any  persons  any  civil  rights  what 
ever.  Hence,  from  the  necessity  of  the  case,  the  con 
queror  has  power  to  establish  a  quasi  military  civil  ad 
ministration  of  government  for  the  protection  of  the 
innocent,  the  restraint  of  the  wicked,  and  the  security 
of  that  conquest  for  which  war  has  been  waged.f 

It  is  under  this  power  of  holding  and  establish 
ing  military  rule  over  conquered  territory,  that  all 
provisional  governments  are  instituted  by  conquer 
ors.  The  President,  as  commander-in-chief,  has  for 
mally  appointed  Andrew  Johnson  governor  of  Ten 
nessee,  with  all  the  powers,  duties,  and  functions  per 
taining  to  that  office,  during  the  pleasure  of  the  Presi 
dent,  or  until  the  loyal  inhabitants  of  that  State  shall 
organize  a  civil  government  in  accordance  with  the  con 
stitution  of  the  United  States.  To  legalize  these  powers 
and  duties,  it  became  expedient  to  give  him  a  military 
position ;  hence  he  was  nominated  as  a  brigadier  gen 
eral,  and  his  nomination  wras  confirmed  by  the  Senate, 
Mr.  Stanley  acts  as  provisional  military  governor  of  North 
Carolina,  under  similar  authority  .J  All  acts  of  military 
government  which  are  within  the  scope  of  their  author- 

*  Cross  v.  Harrison,  10  How.  1G4-190. 

t  See  Fleming  v.  Page,  9  How.  015.  Leitensdorfer  v.  Webb,  20  How.  177.  As  to  Cal 
ifornia,  see  Stat.  at  Large,  vol.  ix.  p.  452.  New  Mexico,  Stat.  at  Large,  ibid.  440.  Hal- 
leek  on  International  Law,  781.  Story  on  Const.,  Sec.  1324.  Am.  Ins.  Co.  v.  Canter, 
1  Pet,  S.  C.  R.  542,  543. 

J  When  this  essay  was  first  published  (18C2),  Mr.  Stanley  and  Mr.  Johnson  were  in  office. 


64  WAR   POWERS    OF    CONGRESS. 

ity,  arc  as  legal  and  constitutional  as  any  other  military 
proceeding.  Hence  any  section  of  this  country,  which, 
having  joined  in  a  general  rebellion,  shall  have  been 
subdued  and  conquered  by  the  military  forces  of  the 
United  States,  may  be  subjected  to  military  govern 
ment,  and  the  rights  of  citizens  in  those  districts  are 
subject  to  martial  law,  so  long  as  the  war  lasts.  What 
ever  of  their  rights  of  property  are  lost  in  and  by 
the  war,  are  lost  forever.  No  citizen,  whether  loyal  or 
rebel,  is  deprived  of  any  right  guaranteed  to  him  in 
the  constitution  by  reason  of  his  subjection  to  mar 
tial  law,  because  martial  law,  when  in  force,  is  constitu 
tional  laiv.  The  people  of  the  United  States,  through 
their  lawfully  chosen  commancler-in-chief,  have  the  con 
stitutional  right  to  seize  and  hold  the  territory  of  a  bel 
ligerent  enemy,  and  to  govern  it  by  martial  law,  thereby 
superseding  the  local  government  of  the  place,  and  all 
rights  which  rebels  might  have  had  as  citizens  of  the 
United  States,  if  they  had  not  violated  the  laws  of  the 
land  by  making  war  upon  the  country. 

By  martial  law,  loyal  citizens  may  be  for  a  time  de 
barred  from  enjoying  the  rights  they  would  be  entitled 
to  in  time  of  peace.  Individual  rights  must  always  be 
held  subject  to  the  exigencies  of  national  safety. 

In  war,  when  martial  law  is  in  force,  the  laws  of  war 
are  the  laws  which  the  constitution  expressly  authorizes 
and  requires  to  be  enforced.  The  constitution,  when  it 
calls  into  action  martial  law,  for  the  time  changes  civil 
rights,  or  rights  which  the  citizen  would  be  entitled  to 
in  peace,  because  the  rights  of  persons  in  one  of  these 
cases  are  totally  incompatible  with  the  obligations  of 
persons  in  the  other.  Peace  and  war  cannot  exist 


WAR    POWERS    OF    CONGRESS.  65 

together ;  the  Laws  of  peace  and  of  war  cannot  operate 
together ;  the  rights  and  procedures  of  peaceful  times 
are  incompatible  with  those  of  war.  It  is  an  ob\ious  but 
pernicious  error  to  suppose  that  in  a  state  of  ivar,  the 
rules  of  martial  law,  and  the  consequent  modification 
of  the  rights,  duties,  and  obligations  of  citizens,  pri 
vate  and  public,  are  not  authorised  strictly  under  the 
constitution.  And  among  the  rights  of  martial  law,  none 
is  more  familiar  than  that  of  seizing  and  establishing 
a  military  government  over  territory  taken  from  the 
enemy ;  and  the  duty  of  thus  protecting  such  territory 
is  imperative,  since  the  United  States  are  obligated  to 
guarantee  to  each  State  a  republican  form  of  govern 
ment.*  That  form  of  government  having  been  over 
thrown  by  force,  the  country  must  take  such  steps, 
military  and  civil,  as  may  tend  to  restore  it  to  the  loyal 
citizens  of  that  State,  if  there  be  any ;  and  if  there 
be  no  persons  who  will  submit  to  the  constitution 
and  laws  of  the  United  States,  it  is  their  duty  to 
hold  that  State  by  military  power,  and  under  military 
rule,  until  loyal  citizens  shall  appear  there  in  sufficient 
numbers  to  entitle  them  to  receive  back  into  their  own 
hands  the  local  government.-)- 

*  Constitution,  Art.  IV.  Sect.  4,  Cl.  1. 

t  Note  to  Fort u -third  Edition.  —  Since  the  issue  of  the  tenth  edition  of  this  book,  in 
18G4,  Congress  has  sanctioned  and  actually  used  the  powers  claimed  on  pages  62-65  as 
rightfully  belonging  to  it,  by  passing  the  Freedman's  Bureau  Act,  March  3,  1865,  and 
the  Reconstruction  Acts,  March  2,  1807,  June  22,  186S  (chap.  60),  June  2o,  1868  (chap.  70); 
and  the  Supreme  Court  has  decided  the  case  of  Georgia  v.  Stanton.  See  Notes  on.  these 
subjects. 

9 


66  LIBERATION    OF    SLAVES. 


CHAPTER    III. 

WAR  POWER   OF  THE    PRESIDENT   TO   EMANCIPATE    S1AVES. 

THE  power  of  the  President,  as  commander-in-chief 
of  the  army  and  navy  of  the  United  States,  when  in 
actual  service,  to  emancipate  the  slaves  of  any  belli 
gerent  section  of  the  country,  if  such  a  measure  be 
comes  necessary  to  save  the  government  from  destruc. 
tion,  is  not,  it  is  presumed,  denied  by  any  respectable 
authority.* 

WHY   THE   POWER  EXISTS. 

The  liberation  of  slaves  is  looked  upon  as  a  means  of 
embarrassing  or  weakening  the  enemy,  or  of  strength 
ening  the  military  power  of  our  army.  If  slaves  be 
treated  as  contraband  of  war,  on  the  ground  that 
they  may  be  used  by  their  masters  to  aid  in  prose 
cuting  war,  as  employees  upon  military  works,  or  as 
laborers  furnishing  by  their  industry  the  means  of  car 
rying  on  hostilities ;  or  if  they  be  treated  as,  in  law, 
belligerents,  following  the  legal  condition  of  their 
owners ;  or  if  they  be  deemed  loyal  subjects  having  a 
just  claim  upon  the  government  to  be  released  from 
their  obligations  to  give  aid  and  service  to  disloyal  and 
belligerent  masters,  in  order  that  they  may  be  free  to 
perform  their  higher  duty  of  allegiance  and  loyalty  to 
the  United  States  ;  or  if  they  be  regarded  as  subjects 

*  it  has  been  shown  in  a  previous  chapter  that  the  government  has  a  right  to  treat 
reocfs  either  as  belligerents  or  as  subjects,  and  to  subject  them  to  the  severities  of  inter 
national  belligerent  law. 


WAR   POWER    OF    THE    PRESIDENT.  67 

of  the  United  States,  liable  to  do  military  duty ;  or  if 
they  be  made  citizens  of  the  United  States,  and  soldiers ; 
or  if  the  authority  of  ttie  masters  over  their  slaves  is 
the  means  of  aiding  and  comforting  the  enemy,  or  of 
throwing  impediments  in  the  way  of  the  government, 
or  depriving  it  of  such  aid  and  assistance  in  successful 
prosecution  of  the  war,  as  slaves  would  and  could 
afford,  if  released  from  the  control  of  the  enemy,  —  or 
if  releasing  the  slaves  would  embarrass  the  enemy,  and 
make  it  more  difficult  for  them  to  collect  and  maintain 
large  armies ;  in  either  of  these  cases,  the  taking  away 
of  these  slaves  from  the  "  aid  and  service "  of  the 
enemy,  and  putting  them  to  the  aid  and  service  of  the 
United  States,  is  justifiable  as  an  act  of  war.  The 
ordinary  way  of  depriving  the  enemy  of  slaves  is  by 
declaring  emancipation. 

THE   PRESIDENT    IS  THE  SOLE  JUDGE. 

"It  belongs  exclusively  to  the  President  to  judge 
when  the  exigency  arises  in  which  he  has  authority, 
under  the  constitution,  to  call  forth  the  militia,  and  his 
decision  is  conclusive  on  all  other  persons."  * 

The  constitution  confers  on  the  Executive,  when  in 
actual  war,  full  belligerent  powers.  The  emancipation 
of  enemy's  slaves  is  a  belligerent  right.  It  belongs 
exclusively  to  the  President,  as  commander-in-chief,  to 
judge  whether  he  shall  exercise  his  belligerent  right  to 
emancipate  slaves  in  those  parts  of  the  country  which 
are  in  rebellion.  If  exercised  in  fact,  and  while  the 
war  lasts,  his  act  of  emancipation  is  conclusive  and 


*  Such  is  the  language  of  Chief  Justice  Taney,  in  delivering  the  opinion  of  the  Su 
preme  Court,  in  Martin  v.  Mott,  12  Wheatou,  19. 


68  LIBERATION    OF    SLAVES. 

binding  forever  on  all  the  departments  of  government, 
and  on  all  persons  whatsoever. 

POWERS    OF  THE    PRESIDENT    NOT  INCONSISTENT  WITH   POWERS    OF 
CONGRESS    TO  EMANCIPATE   SLAVES. 

The  right  of  the  Executive  to  strike  this  blow  against 
his  enemy  does  not  deprive  Congress  of  the  concur 
rent  right  or  duty  to  emancipate  enemy's  slaves,  if  in 
their  judgment  a  civil  act  for  that  purpose  is  required  by 
public  welfare  and  common  defence,  for  the  purpose  of 
aiding  and  giving  effect  to  such  war  measures  as  the 
commander-in-chief  may  adopt. 

The  military  authority  of  the  President  is  not  incom 
patible  with  the  peace  or  war  powers  of  Congress ;  but 
both  coexist,  and  may  be  exercised  upon  the  same  sub 
ject.  Thus,  when  the  army  captures  a  regiment  of 
soldiers,  the  legislature  may  pass  laws  relating  to  the 
captives.  So  may  Congress  destroy  slavery  by  abolish 
ing  the  laws  which  sustain  it,  while  the  commander  of 
the  army  may  destroy  it  by  capture  of  slaves,  by 
proclamation,  or  by  other  means. 

IS   LIBERATION  OF  ENEMY'S  SLAVES   A  BELLIGERENT  RIGHT  ? 

This  is  the  chief  inquiry  on  this  branch  of  the  sub 
ject.  To  answer  it  we  must  appeal  to  the  law  of 
nations,  and  learn  whether  there  is  any  commanding 
authority  which  forbids  the  use  of  an  engine  so  power 
ful  and  so  formidable  —  an  engine  which  may  grind  to 
powder  the  disloyalty  of  rebels  in  arms,  while  it  clears 
the  avenue  to  freedom  for  four  millions  of  Americans. 
It  is  only  the  law  of  nations  that  can  decide  this  ques 
tion,  because  the  constitution,  having  given  authority 
to  government  to  make  war,  has  placed  no  limit  what- 


WAR    POWER    OF    THE    PRESIDENT.  69 

ever  to  the  war  powers.  There  is,  therefore,  no  legal 
control  over  the  war  powers  except  the  law  of  nations, 
and  no  moral  control  except  the  usage  of  modern  civil 
ized  belligerents. 

THE    LAW    OF    NATIONS    SANCTIONS    EMANCIPATION    OF    ENEMY'S 
SLAVES. 

It  is  in  accordance  with  the  law  of  nations  and  with 
the  practice  of  civilized  belligerents  in  modern  times, 
to  liberate  enemy's  slaves  in  time  of  war  by  military 
power.  In  the  revolutionary  war,  England  exercised 
that  unquestioned  right  by  not  less  than  three  of  her 
military  commanders  —  Sir  Henry  Clinton,  Lord  Dun- 
more,  and  Lord  Cornwallis.  That  General  Washington 
recognized  and  feared  Lord  Dunmore's  appeal  to  the 
slaves,  is  shown  by  his  letter  on  that  subject. 

"  His  strength,"  said  Washington,  "  will  increase  as  a  snow-ball  by 
rolling  faster  and  faster,  if  some  expedient  cannot  be  hit  upon  to  con 
vince  the  slaves  and  servants  of  the  impotency  of  his  designs." 

The  right  to  call  the  slaves  of  colonists  to  the  aid  of 
the  British  arms  was  expressly  admitted  by  Jefferson, 
in  his  letter  to  Dr.  Gordon.  In  writing  of  the  injury 
done  to  his  estates  by  Cornwallis,  he  uses  the  following 
language :  — 

"  He  destroyed  all  my  growing  crops  and  tobacco ;  he  burned  all 
my  barns,  containing  the  same  articles  of  last  year.  Having  first  taken 
what  corn  he  wanted,  he  used,  as  was  to  be  expected,  all  my  stock  of 
cattle,  sheep,  and  hogs,  for  the  sustenance  of  his  army,  and  carried  off 
all  the  horses  capable  of  service.  He  carried  off  also  about  thirty 
slaves.  Had  this  been  to  give  them  freedom,  he  would  have  done  right. 
.  .  .  From  an  estimate  made  at  the  time  on  the  best  information  I 
could  collect,  I  suppose  the  State  of  Virginia  lost  under  Lord  Corn- 
wallis's  hands,  that  year,  about  thirty  thousand  slaves." 


70  LIBERATION    OF    SLAVES. 

Great  Britain,  for  the  second  time,  used  the  same 
right  against  us  in  the  war  of  1812.  Her  naval  and 
military  commanders  invited  the  slaves,  by  public  proc 
lamations,  to  repair  to  their  standard,  promising  them 
freedom.*  The  slaves  who  went  over  to  them  were  lib 
erated,  and  were  carried  away  contrary  to  the  express 
terms  of  the  treaty  of  Ghent,  in  which  it  was  stipulated 
that  they  should  not  be  carried  away.  England  pre 
ferred  to  become  liable  for  a  breach  of  the  treaty  rather 
than  to  break  faith  with  the  fugitives.  Indemnity  for 
this  violation  of  contract  was  demanded  and  refused. 
The  question  was  referred  to  the  decision  of  the  Em 
peror  of  Russia,  as  arbitrator,  who  decided  that  indem 
nity  should  be  paid  by  Great  Britain,  not  because  she 
had  violated  the  law  of  nations  in  emancipating  slaves, 
but  because  she  had  broken  the  terms  of  the  treaty. 

In  the  arguments  submitted  to  the  referee,  the  Brit 
ish  government  broadly  asserted  the  belligerent  right 
of  liberating  enemy's  slaves,  even  if  they  were  treated 
as  private  property.  Mr.  Middleton  was  instructed  by 
Mr.  J.  Q.  Adams,  then,  in  1820,  Secretary  of  State,  to 
deny  that  right,  and  to  present  reasons  for  that  denial. 
But  that  in  this  instance  he  acted  in  obedience  to  the 
instructions  of  the  President  and  cabinet,  and  against 
his  own  opinions  on  the  law  of  nations,  is  shown  by  his 
subsequent  statement  in  Congress  to  that  effectf  The 
question  of  international  law  was  left  undecided  by  the 
Emperor;  but  the  assertion  of  England,  that  it  is  a 


*  For  Admiral  Cochrane's  Proclamation,  instigating  the  slaves  to  desert  their  masters, 
see  Niles's  Register,  vol.  vi.  p.  242. 

f  "It  was  utterly  against  my  judgment  and  wishes;  but  I  was  obliged  to  submit,  and 
prepared  the  requisite  despatches."  See  Congressional  Globe,  XXVII.  Cong.,  2d  seas., 
1841-2;  vol.  ii.  p.  424. 


WAR    POWER    OF   THE   PRESIDENT.  71 

legitimate  exercise  of  belligerent  rights  to  liberate 
enemy's  slaves,  —  a  right  which  had  previously  been 
enforced  by  her  against  the  colonies,  and  by  France 
against  her,  and  again  by  her  against  the  United  States, 
—  was  entitled  to  great  weight,  as  a  reiterated  and 
authentic  reaffirmance  of  the  well-settled  doctrine. 

In  speeches  before  the  House  of  Representatives  on 
the  25th  of  May,  1836,  on  the  7th  of  June,  1841,  and 
on  the  14th  and  15th  of  April,  1842,  Mr.  Adams  ex 
plained  and  asserted  in  the  amplest  terms  the  powers 
of  Congress,  and  the  authority  of  the  President,  to  free 
enemy's  slaves,  as  a  legitimate  act  of  war.*  Thus  lead 
ing  statesmen  of  England  and  America  have  concurred 
in  the  opinion  that  emancipation  is  a  belligerent  right. 

St.  Domingo,  in  1793,  contained  more  than  five  hun 
dred  thousand  negroes,  with  many  mulattoes  and 
whites,  and  was  held  as  a  province  of  France.  Intes 
tine  commotions  had  raged  for  nearly  three  years  be 
tween  the  whites  and  mulattoes,  in  which  the  negroes 
had  remained  neutral.  The  Spaniards  having  ef 
fected  an  alliance  with  the  slaves  who  had  revolted 
in  1791,  invaded  the  island  and  occupied  several  im 
portant  military  points.  England,  also,  was  making  a 
treaty  with  the  planters  to  invade  the  country ;  and 
thus  the  possession  seemed  about  to  be  wrested  from 
France  by  the  efforts  of  one  or  the  other  of  its  two 
bitterest  foes.  One  thousand  French  soldiers,  a  few 
mulattoes  and  loyal  slaveholders,  were  all  the  force 
which  could  be  mustered  in  favor  of  the  government, 
for  the  protection  of  this  precious  island,  situated  so 
far  away  from  France. 

*  For  extracts  from  these  speeches,  scepostea. 


72  LIBERATION    OF   SLAVES. 

Sonthonax  and  Polverel,  the  French  commissioners, 
on  the  29th  of  August,  1793,  issued  a  proclamation, 
under  martial  law,  wherein  they  declared  all  the  slaves 
free,  and  thereby  brought  them  over  en  masse  to  the 
support  of  the  government.  The  English  troops  landed 
three  weeks  afterwards,  and  were  repulsed  principally 
by  the  slave  army. 

On  the  4th  of  February,  1794,  the  National  Conven 
tion  of  France  confirmed  the  act  of  the  commissioners, 
and  also  abolished  slavery  in  the  other  French  colonies. 

In  June,  1794,  Toussaint  L'Ouverture,  a  colored  man, 
admitted  by  military  critics  to  be  one  of  the  great 
generals  of  modern  times,  having  until  then  fought 
in  favor  of  Spain,  brought  his  army  of  five  thousand 
colored  troops  to  the  aid  of  France,  forced  entrance 
into  the  chief  city  of  the  island  in  which  the  French 
troops  were  beleaguered,  relieved  his  allies,  and  offered 
himself  and  his  army  to  the  service  pf  that  govern 
ment,  which  had  guaranteed  to  them  their  freedom. 
From  that  hour  the  fortunes  of  the  war  changed. 
The  English  were  expelled  from  the  island  in  1798 ; 
the  Spaniards  also  gave  it  up;  and  in  1801  Toussaint 
proclaimed  the  republic  in  the  Spanish  portion  of  the 
island  which  had  been  ceded  to  France  by  the  treaty 
of  1795 ;  thus  extending  the  practical  operation  of 
the  decree  of  emancipation  over  the  whole  island,  and 
liberating  one  hundred  thousand  more  persons  who 
had  been  slaves  of  Spaniards. 

The  island  was  put  under  martial  law ;  the  planters 
were  recalled  by  Toussaint,  and  permitted  to  hire  their 
former  slaves;  and  his  government  was  enforced  by 
military  power;  and  from  that  time  until  1802,  the 
progress  of  the  people  in  commerce,  industry,  and  gen- 


WAR   POWER    OF   THE   PRESIDENT.  73 

eral  prosperity  was  rapid  and  satisfactory.  But  in 
1802  the  influence  of  emigrant  planters,  and  of  the 
Empress  Josephine,  a  Creole  of  Martinique,  induced 
Napoleon  to  send  a  large  army  to  the  island,  to  rees 
tablish  the  slave  trade  and  slavery  in  all  the  other  isl 
ands  except  St.  Domingo,  with  the  design  of  restoring 
slavery  there  after  he  should  have  conquered  it.  But 
war,  sickness,  and  disasters  broke  up  his  forces,  and 
the  treacherous  Frenchmen  met  the  due  reward  of 
their  perfidy,  and  were,  in  1804,  totally  driven  from 
the  island.  The  independence  of  St.  Domingo  was 
actually  established  in  1804.  The  independence  of 
Hayti  was  recognized  by  the  United  States  in  1862. 

From  this  brief  outline  it  is  shown,  that  France 
recognizes  the  right,  under  martial  law,  to  emancipate 
the  slaves  of  an  enemy  —  having  asserted  and  exer 
cised  that  right  in  the  case  of  St.  Domingo.*  And  the 
slaves  thus  liberated  have  retained  their  liberty,  and 
compose,  at  this  day,  the  principal  population  of  a  gov 
ernment  who  have  entered  into  diplomatic  relations 
with  the  United  States. 

In  Colombia  slavery  was  abolished,  first  by  the 
Spanish  General  Morillo,  and  secondly  by  the  American 
General  Bolivar.  "  It  was  abolished,"  says  John  Quincy 
Adams,  "  by  virtue  of  a  military  command  given  at  the 
head  of  the  army,  and  its  abolition  continues  to  this 
day.  It  was  abolished  by  the  laws  of  war,  and  not  by 
the  municipal  enactments;  the  power  was  exercised 

*  For  the  decree  of  the  French  Assembly,  see  Clioix  de  Rapports  —  Opinions  et  Dis- 
cours  prononces  a  la  Tribune  Nationale  depuis  1789.  Paris,  1821,  t.  xiv.  p.  425.  See 
Abolition  d'Esclavage  (Colonies  Francaises),par  Augustin  Cochin.  Paris,  1861.  Vol.  i. 
pp.  14,  15,  &c. 

10 


74  LIBERATION    OF    SLAVES. 

by  military  commanders,  under  instructions,  of  course, 
from  their  respective  governments." 

AUTHORITY  AND  USAGE   CONFIRM   THE  RIGHT. 

It  may  happen  that  when  belligerents  on  both  sides 
hold  slaves,  neither  will  deem  it  expedient,  through  fear 
of  retaliation,  to  liberate  the  slaves  of  his  adversary ; 
but  considerations  of  policy  do  not  affect  questions  of 
international  rights;  and  forbearance  to  exercise  a 
power  does  not  prove  its  non-existence.  While  no  au 
thority  among  eminent  ancient  writers  on  the  subject 
has  been  found  to  deny  the  right  of  emancipation,  the 
fact  that  England,  France,  Spain,  and  the  South  Amer 
ican  republics  have  actually  freed  the  slaves  of  their 
enemies,  conclusively  shows  that  the  law  and  practice 
of  modern  civilized  nations  sanction  that  right. 

HOW  FAR  THE  GOVERNMENT  OF  THE  UNITED  STATES  UNDER  FORMER 
ADMINISTRATIONS  HAVE  SANCTIONED  THE  BELLIGERENT  RIGHT 
OF  EMANCIPATING  SLAVES  OF  LOYAL  AND  OF  DISLOYAL  CITIZENS. 

The  government  of  the  United  States,  in  1814,  recog 
nized  the  right  of  their  military  officers,  in  time  of  war, 
to  appropriate  to  public  use  the  slaves  of  loyal  citizens 
without  compensation  therefor ;  also,  in  1836,  the  right 
to  reward  slaves  who  have  performed  public  service, 
by  giving  freedom  to  them  and  to  their  families ;  also, 
in  1838,  the  principle  that  slaves  of  loyal  citizens,  cap 
tured  in  war,  should  be  emancipated,  and  not  returned 
to  their  masters ;  and  that  slaves  escaping  to  the  army 
of  the  United  States  should  be  treated  as  prisoners  of 
war,  and  not  as  property  of  their  masters.  These  prop 
ositions  are  supported  by  the  cases  of  General  Jackson, 
Genera]  Jessup,  General  Taylor,  and  General  Gaines. 


WAR    POWER    OF   THE    PRESIDENT.  75 

"  In  December,  1814,"  says  a  distinguished  writer  and  speaker, 
"  General  Jackson  impressed  a  large  number  of  slaves  at  and  near  New 
Orleans,  and  set  them  at  work  erecting  defences,  behind  which  his  troops 
won  such  glory  on  the  8th  of  January,  1815.  The  masters  remon 
strated.  Jackson  disregarded  their  remonstrances,  and  kept  the  slaves 
at  work  until  many  of  them  were  killed  by  the  enemy's  shot ;  yet  his 
action  was  approved  by  Mr.  Madison,  the  cabinet,  and  by  the  Con 
gress,  which  has  ever  refused  to  pay  the  masters  for  their  losses.  In 
this  case,  the  masters  were  professedly  friends  to  the  government;  and 
yet  our  Presidents,  and  cabinets,  and  generals  have  not  hesitated  to 
emancipate  their  slaves,  whenever  in  time  of  war  it  was  supposed  to 
be  for  the  interest  of  the  country  to  do  so.  This  was  done  in  the 
exercise  of  the  war  power  to  which  Mr.  Adams  referred,  and  for 
which  he  had  the  most  abundant  authority." 

"In  1836  General  Jessup  engaged  several  fugitive  slaves  to  act 
as  guides  and  spies,  agreeing,  if  they  would  serve  the  government 
faithfully,  to  secure  to  them  the  freedom  of  themselves  and  families. 
They  fulfilled  their  engagement  in  good  faith.  The  general  gave  them 
their  freedom,  and  sent  them  to  the  west.  Mr.  Van  Buren's  admin 
istration  sanctioned  the  contract,  and  Mr.  Tyler's  administration  ap 
proved  the  proceeding  of  the  general  in  setting  the  slaves  and  their 
families  free." 

The  writer  above  quoted  says, — 

"  Louis,  the  slave  of  a  man  named  Pacheco,  betrayed  Major  Dade's 
battalion,  in  1836,  and  when  he  had  witnessed  their  massacre,  he 
joined  the  enemy.  Two  years  subsequently  he  was  captured.  Pa 
checo  claimed  him  ;  General  Jessup  said  if  he  had  time,  he  would  try 
him  before  a  court  martial  and  hang  him,  but  would  not  deliver  him 
to  any  man.  He,  however,  sent  him  west,  and  the  fugitive  slave  be 
came  a  free  men.  General  Jessup  reported  his  action  to  the  War 
Department,  and  Mr.  Van  Buren,  then  President,  with  his  cabinet, 
approved  it.  Pacheco  then  appealed  to  Congress,  asking  that  body 
to  pay  him  for  the  loss  of  his  slave.  The  House  of  Representatives 
voted  against  the  bill,  which  was  rejected.  All  concurred  in  the  opin 
ion  that  General  Jessup  did  right  in  emancipating  the  slave,  instead 
of  returning  him  to  his  master. 

"In  1838  General  Taylor  captured  a  number  of  negroes  said  to 
be  fugitive  slaves.  Citizens  of  Florida,  learning  what  had  been  done, 
immediately  gathered  around  his  camp,  intending  to  secure  the  slave? 


76  LIBERATION    OF    SLAVES. 

who  had  escaped  from  them.  General  Taylor  told  them  that  he  had 
no  prisoners  but  '  prisoners  of  war.'  The  claimants  then  desired  to 
look  at  them,  in  order  to  determine  whether  he  was  holding  their 
slaves  as  prisoners.  The  veteran  warrior  replied  that  no  man  should 
examine  his  prisoners  for  such  a  purpose  ;  and  he  ordered  them  to 
depart.  This  action,  being  reported  to  the  War  Department,  was  ap* 
proved  by  the  Executive.  The  slaves,  however,  were  sent  west,  and 
set  free. 

"In  1838  many  fugitive  slaves  and  Indians,  captured  in  Florida, 
had  been  ordered  to  be  sent  west  of  the  Mississippi.  Some  of  them 
were  claimed  at  New  Orleans  by  their  owners,  under  legal  process. 
General  Gaines,  commander  of  the  military  district,  refused  to  deliver 
them  up  to  the  sheriff,  and  appeared  in  court  and  stated  his  own 
defence. 

"  His  grounds  of  defence  were,  '  that  these  men,  women,  and  chil 
dren  were  captured  in  war,  and  held  as  prisoners  of  war  ;  that  as 
commander  of  that  military  department  he  held  them  subject  only  to 
the  order  of  the  national  Executive  ;  that  he  could  recognize  no 
other  power  in  time  of  war,  or  by  the  laws  of  war,  as  authorized  to 
take  prisoners  from  his  possession.  He  asserted  that  in  time  of  war 
all  slaves  were  belligerents  as  much  as  their  masters.  The  slave  men 
cultivate  the  earth,  and  supply  provisions.  The  women  cook  the  food 
and  nurse  the  sick,  and  contribute  to  the  maintenance  of  the  war,  often 
more  than  the  same  number  of  males.  The  slave  children  equally 
contribute  whatever  they  are  able  to  the  support  of  the  war.  The 
military  officer,  he  said,  can  enter  into  no  judicial  examination  of  the 
claim  of  one  man  to  the  bone  and  muscle  of  another,  as  property ;  nor 
could  he,  as  a  military  officer,  know  what  the  laws  of  Florida  were 
while  engaged  in  maintaining  the  federal  government  by  force  of 
arms.  In  such  case  he  could  only  be  guided  by  the  laws  of  war,  and 
whatever  may  be  the  laws  of  any  State,  they  must  yield  to  the  safety 
of  the  federal  government.  He  sent  the  slaves  west,  and  they  be 
came  free.' "  * 

On  the  26th  of  May,  1836,  in  a  debate  in  the  House  of 
Eepresentatives  upon  the  joint  resolution  for  distributing 
rations  to  the  distressed  fugitives  from  Indian  hostilities 

*  This  defence  of  General  Gaines  may  be  found  in  House  Document  No.  225  of  the  2d 
session  of  the  25th  Congress. 


WAR    POWER    OF    THE    PRESIDENT.  77 

in   the    states    of  Alabama  and   Georgia,  JOHN  QUINCY 
ADAMS  expressed  the  following  opinions :  — 

"Sir,  in  the  authority  given  to  Congress  by  the  constitution  of 
the  United  States  to  declare  war,  all  the  powers  incidental  to  war 
are,  by  necessary  implication,  conferred  upon  the  government  of  the 
United  States.  Now,  the  powers  incidental  to  war  are  derived,  not 
from  their  internal  municipal  source,  but  from  the  laws  and  usages  of 
nations. 

"  There  are,  then,  Mr.  Chairman,  in  the  authority  of  Congress  and 
of  the  Executive,  two  classes  of  powers,  altogether  different  in  their 
nature,  and  often  incompatible  with  each  other  —  the  war  power  and 
the  peace  power.  The  peace  power  is  limited  by  regulations  and  re 
stricted  by  provisions  prescribed  within  the  Constitution  itself.  The 
war  power  is  limited  only  by  the  laws  and  usages  of  nations.  This 
power  is  tremendous ;  it  is  strictly  constitutional,  but  it  breaks  down 
every  barrier  so  anxiously  erected  for  the  protection  of  liberty,  of  prop 
erty,  and  of  life.  This,  sir,  is  the  power  which  authorizes  you  to  pass 
the  resolution  now  before  you,  and,  in  my  opinion,  no  other." 

After  an  interruption,  Mr.  Adams  went  on  to  say,  — 

"There  are,  indeed,  powers  of  peacq  conferred  upon  Congress 
which  also  come  within  the  scope  and  jurisdiction  of  the  laws  of 
nations,  such  as  the  negotiation  of  treaties  of  amity  and  commerce, 
the  interchange  of  public  ministers  and  consuls,  and  all  the  personal 
and  social  intercourse  between  the  individual  inhabitants  of  the 
United  States  and  foreign  nations,  and  the  Indian  tribes,  which  require 
the  interposition  of  any  law.  But  the  powers  of  war  are  all  regulated 
by  the  laws  of  nations,  and  are  subject  to  no  other  limitation.  ...  It 
was  upon  this  principle  that  I  voted  against  the  resolution  reported  by 
the  slavery  committee,  'that  Congress  possess  no  constitutional  author 
ity  to  interfere,  in  any  way,  with  the  institution  of  slavery  in  any  of 
the  States  of  this  confederacy,'  to  which  resolution  most  of  those  with 
whom  I  usually  concur,  and  even  my  own  colleagues  in  this  house, 
gave  their  assent.  I  do  not  admit  that  there  is,  even  among  the  peace 
powers  of  Congress,  no  such  authority ;  but  in  war,  there  are  many  ways 
by  which  Congress  not  only  have  the  authority,  but  ARE  BOUND  TO 

INTERFERE    WITH    THE     INSTITUTION    OF    SLAVERY    IN    THE    STATES. 

The  existing  law  prohibiting  the  importation  of  slaves  into  the  United 
States  from  foreign  countries   is  itself  an  interference  with  the  insti* 


78  LIBERATION    OF    SLAVES. 

tution  of  slavery  in  the  States.  It  was  so  considered  by  the  founders 
of  the  constitution  of  the  United  States,  in  which  it  was  stipulated 
that  Congress  should  not  interfere,  in  that  way,  with  the  institution, 
prior  to  the  year  1808. 

"  During  the  late  war  with  Great  Britain,  the  military  and  naval 
commanders  of  that  nation  issued  proclamations  inviting  the  slaves  to 
repair  to  their  standard,  with  promises  of  freedom  and  of  settlement  in 
some  of  the  British  colonial  establishments.  This  surely  was  an  inter 
ference  with  the  institution  of  slavery  in  the  States.  By  the  treaty 
of  peace,  Great  Britian  stipulated  to  evacuate  all  the  forts  and  places 
in  the  United  States,  without  carrying  away  any  slaves.  If  the  gov 
ernment  of  the  United  States  had  no  power  to  interfere,  in  any  way, 
with  the  institution  of  slavery  in  the  States,  they  would  not  have  had 
the  authority  to  require  this  stipulation.  It  is  well  known  that  this 
engagement  was  not  fulfilled  by  the  British  naval  and  military  com 
manders  ;  that,  on  the  contrary,  they  did  carry  away  all  the  slaves 
whom  they  had  induced  to  join  them,  and  that  the  British  government 
inflexibly  refused  to  restore  any  of  them  to  their  masters  ;  that  a  claim 
of  indemnity  was  consequently  instituted  in  behalf  of  the  owners  of 
the  slaves,  and  was  successfully  maintained.  All  that  series  of  trans 
actions  was  an  interference  by  Congress  with  the  institution  of  slavery 
in  the  States  in  one  way  —  in  the  way  of  protection  and  support.  It 
was  by  the  institution  of  slavery  alone  that  the  restitution  of  slaves, 
enticed  by  proclamations  into  the  British  service,  could  be  claimed  as 
property.  But  for-the  institution  of  slavery,  the  British  commanders 
could  neither  have  allured  them  to  their  standard,  nor  restored  them 
otherwise  than  as  liberated  prisoners  of  war.  But  for  the  institution 
of  slavery,  there  could  have  been  no  stipulation  that  they  should  not 
be  carried  away  as  property,  nor  any  claim  of  indemnity  for  the  viola 
tion  of  that  engagement." 

Mr.  Adams  goes  on  to  state  how  the  war  power  may 
be  used :  — 

"  But  the  war  power  of  Congress  over  the  institution  of  slavery  in 
the  States  is  yet  far  more  extensive.  Suppose  the  case  of  a  servile 
war,  complicated,  as  to  some  extent  it  is  even  now,  with  an  Indian 
war ;  suppose  Congress  were  called  to  raise  armies,  to  supply  money 
from  the  whole  Union  to  suppress  a  servile  insurrection  :  would  they 
have  no  authority  to  interfere  with  the  institution  of  slavery  ?  TV 
issue  of  a  servile  war  may  be  disastrous  ;  it  may  become  necessary  for  the 


WAR    POWER    OF    THE    PRESIDENT.  79 

master  of  the  slave  to  recognize  his  emancipation  by  a  treaty  of  peace : 
can  it  for  an  instant  be  pretended  that  Congress,  in  such  a  contingency, 
would  have  no  authority  to  interfere  with  the  institution  of  slavery,  in 
any  way,  in  the  States  ?  Why,  it  would  be  equivalent  to  saying  that 
Congress  have  no  constitutional  authority  to  make  peace.  I  suppose 
a  more  portentous  case,  certainly  within  the  bounds  of  possibility  —  I 
would  to  God  I  could  say,  not  within  the  bounds  of  probability  —  " 

"  Do  you  imagine,"  he  asks,  "  that  your  Congress  will  have  no  con 
stitutional  authority  to  interfere  with  the  institution  of  slavery,  in  any 
way,  in  the  States  of  this  confederacy?  Sir,  they  must  and  will  in 
terfere  with  it  —  perhaps  to  sustain  it  by  war,  perhaps  to  abolish  it  by 
treaties  of  peace ;  and  they  will  not  only  possess  the  constitutional 
power  so  to  interfere,  but  they  will  be  bound  in  duty  to  do  it,  by  the 
express  provisions  of  the  constitution  itself.  From  the  instant  that 
your  slaveholding  States  become  the  theatre  of  a  war,  civil,  servile,  or 
foreign  war,  from  that  instant  the  war  powers  of  Congress  extend  to  in 
terference  with  the  institution  of  slavery,  in  every  way  by  which  it  can 
be  interfered  with,  from  a  claim  of  indemnity  for  slaves  taken  or 
destroyed,  to  the  cession  of  States  burdened  with  slavery  to  a  foreign 
power." 

Extracts  from  the  speech  of  John  Quincy  Adams, 
delivered  in  the  United  States  House  of  Representa 
tives,  April  14th  and  15th,  1842,  on  war  with  Great 
Britain  and  Mexico  have  been  reported  "as  follows : 

"  What  I  say  is  involuntary,  because  the  subject  has  been  brought 
into  the  house  from  another  quarter,  as  the  gentleman  himself  admits. 
I  would  leave  that  institution  to  the  exclusive  consideration  and  man 
agement  of  the  States  more  peculiarly  interested  in  it,  just  as  long  as 
they  can  keep  within  their  own  bounds.  So  far,  I  admit  that  Con 
gress  has  no  power  to  meddle  with  it.  As  long  as  they  do  not  step 
out  of  their  own  bounds,  and  do  not  put  the  question  to  the  people 
of  the  United  States,  whose  peace,  welfare,  and  happiness  are  all  at 
stake,  so  long  I  will  agree  to  leave  them  to  themselves.  But  when  a 
member  from  a  free  State  brings  forward  certain  resolutions,  for  which, 
instead  of  reasoning  to  disprove  his  positions,  you  vote  a  censure  upon 
him,  and  that  without  hearing,  it  is  quite  another  affair.  At  the  time 
this  was  done,  I  said  that,  as  far  as  I  could  understand  the  resolutions 
proposed  by  the  gentleman  from  Ohio,  (Mr.  Giddings,)  there  were 


80  LIBERATION    OF    SLAVES. 

some  of  them  for  which  I  was  ready  to  vote,  and  some  which  I  must 
vote  against ;  and  I  will  now  tell  this  house,  my  constituents,  and  the 
whole  of  mankind,  that  the  resolution  against  which  I  would  have 
voted  was  that  in  which  he  declares  that  what  are  called  the  slave 
States  have  the  exclusive  right  of  consultation  on  the  subject  of 
slavery.  For  that  resolution  I  never  would  vote,  because  I  believe 
that  it  is  not  just,  and  does  not  contain  constitutional  doctrine.  I 
believe  that,  so  long  as  the  slave  States  are  able  to  sustain  their  insti 
tutions  without  going  abroad  or  calling  upon  other  parts  of  the  Union  to 
aid  them  or  act  on  the  subject,  so  long  I  will  consent  never  to  interfere. 
I  have  said  this,  and  I  repeat  it ;  but  if  they  come  to  the  free  States, 
and  say  to  them,  You  must  help  us  to  keep  down  our  slaves,  you  must 
aid  us  in  an  insurrection  and  a  civil  war,  then  I  say  that  with  that  call 
comes  full  and  plenary  power  to  this  house  and  to  the  Senate  over  the 
whole  subject.  It  is  a  war  power.  I  say  it  is  a  war  power  ;  and 
when  your  country  is  actually  in  war,  whether  it  be  a  war  of  invasion 
or  a  war  of  insurrection,  Congress  has  power  to  carry  on  the  war,  and 
must  carry  it  on,  according  to  the  laws  of  war ;  and  by  the  laws  of 
war,  an  invaded  country  has  all  its  laws  and  municipal  institutions 
swept  by  the  board,  and  martial  law  takes  the  place  of  them.  This 
power  in  Congress  has,  perhaps,  never  been  called  into  exercise  under 
the  present  constitution  of  the  United  States.  But  when  the  laws  of 
war  are  in  force,  what,  I  ask,  is  one  of  those  laws  ?  It  is  this  :  that 
when  a  country  is  invaded,  and  two  hostile  armies  are  set  in  martial 
array,  the  commanders  of  both  armies  have  power  to  emancipate  all  the 
slaves  in  the  invaded  territory.  Nor  is  this  a  mere  theoretic  state 
ment.  The  history  of  South  America  shows  that  the  doctrine  has 
been  carried  into  practical  execution  within  the  last  thirty  years. 
Slavery  was  abolished  in  Colombia,  first,  by  the  Spanish  General 
Morillo,  and,  secondly,  by  the  American  General  Bolivar.  It  was 
abolished  by  virtue  of  a  military  command  given  at  the  head  of  the 
army,  and  its  abolition  continues  to  be  law  to  this  day.  It  was  abolished 
by  the  laws  of  war,  and  not  by  the  municipal  enactments  ;  the  power 
was  exercised  by  military  commanders,  under  instructions,  of  course, 
from  their  respective  governments.  And  here  I  recur  again  to  the 
example  of  General  Jackson.  What  are  you  now  about  in  Congress  ? 
You  are  about  passing  a  grant  to  refund  to  General  Jackson  the 
amount  of  a  certain  fine  imposed  upon  him  by  a  judge,  under  the  laws 
of  the  State  of  Louisiana.  You  are  going  to  refund  him  the  money, 
with  interest ;  and  this  you  are  going  to  do  because  the  imposition  of 


WAR    POWER    OF   THE    PRESIDENT.  81 

the  fine  was  unjust.  And  why  was  it  unjust  ?  Because  General 
Jackson  was  acting  under  the  laws  of  war,  and  because  the  moment 
you  place  a  military  commander  in  a  district  which  is  the  theatre  of 
war,  the  laws  of  war  apply  to  that  district. 

*  *  ***** 

"  I  might  furnish  a  thousand  proofs  to  show  that  the  pretensions  of 
gentlemen  to  the  sanctity  of  their  municipal  institutions  under  a  state 
of  actual  invasion  and  of  actual  war,  whether  servile,  civil,  or  foreign, 
is  wholly  unfounded,  and  that  the  laws  of  war  do,  in  all  such  cases, 
take  the  precedence.  I  lay  this  down  as  the  law  of  nations.  I  say 
that  military  authority  takes,  for  the  time,  the  place  of  all  municipal 
institutions,  and  slavery  among  the  rest ;  and  that,  under  that  state  of 
things,  so  far  from  its  being  true  that  the  States  where  slavery  exists 
have  the  exclusive  management  of  the  subject,  not  only  the  President 
of  the  United  States,  but  the  commander  of  the  army,  has  power  to 
order  the  universal  emancipation  of  the  slaves.  I  have  given  here 
more  in  detail  a  principle  which  I  have  asserted  on  this  floor  before 
now,  and  of  which  I  have  no  more  doubt  than  that  you,  sir,  occupy 
that  chair.  I  give  it  in  its  development,  in  order  that  any  gentleman 
from  any  part  of  the  Union  may,  if  he  thinks  proper,  deny  the  truth 
of  the  position,  and  may  maintain  his  denial ;  not  by  indignation,  not 
by  passion  and  fury,  but  by  sound  and  sober  reasoning  from  the  laws 
of  nations  and  the  laws  of  war.  And  if  my  position  can  be  answered 
and  refuted,  I  shall  receive  the  refutation  with  pleasure ;  I  shall  be 
glad  to  listen  to  reason,  aside,  as  I  say,  from  indignation  and  passion. 
And  if,  by  the  force  of  reasoning,  my  understanding  can  be  convinced, 
I  here  pledge  myself  to  recant  what  I  have  asserted. 

"  Let  my  position  be  answered ;  let  me  be  told,  let  my  constituents  be 
told,  let  the  people  of  my  State  be  told,  —  a  State  whose  soil  tolerates 
not  the  foot  of  a  slave,  —  that  they  are  bound  by  the  constitution  to  a 
long  and  toilsome  march,  under  burning  summer  suns  and  a  deadly 
southern  clime,  for  the  suppression  of  a  servile  war ;  that  they  are 
bound  to  leave  their  bodies  to  rot  upon  the  sands  of  Carolina,  to  leave 
their  wives  widows  and  their  children  orphans  ;  that  those  who  cannot 
march  are  bound  to  pour  out  their  treasures  while  their  sons  or  brothers 
are  pouring  out  their  blood  to  suppress  a  servile,  combined  with  a  civil 
or  a  foreign  war ;  and  yet  that  there  exists  no  power  beyond  the  limits 
of  the  slave  State  where  such  war  is  raging  to  emancipate  the  slaves. 
I  say,  let  this  be  proved  —  I  am  open  to  conviction  ;  but  till  that  con 
viction  comes,  I  put  it  forth,  not  as  a  dictate  of  feeling,  but  as  a  settled 
maxim  of  the  laws  of  nations,  that,  in  such  a  case,  the  military  su per 
il 


82  LIBERATION    OF    SLAVES. 

sedes  the  civil  power ;  and  on  this  account  I  should  have  been  obliged 
to  vote,  as  I  have  said,  against  one  of  the  resolutions  of  my  excellent 
friend  from  Ohio,  (Mr.  Giddings,)  or  should  at  least  have  required  that 
it  be  amended  in  conformity  with  the  constitution  of  the  United  States.'* 

CONCLUSION. 

It  has  thus  been  proved,  by  the  law  and   usage  of 
modern  civilized  nations,  by  the  judgment  of  eminent 
statesmen,  and  by  the  former  practice  of  this   govern 
ment,  that   the   President,  as   commander-in-chief,  has 
the  authority,  as  an  act  of  war,  to  liberate  the  slaves 
of  the  enemy,  and    that    the  United  States  have   in 
former  times  sanctioned  the  liberation  of  slaves  even 
of  loyal  citizens,  by  military  commanders,  in  time  of 
war,  without  compensation  therefor ;  and  have  deemed 
slaves  captured  in  war    from   belligerent  subjects    as 
entitled  to  their  freedom.* 

*  GENERAL  WAR  POWERS  OF  THE  PRESIDENT.  It  is  not  intended  in  this 
chapter  to  explain  the  general  war  powers  of  the  President.  They  are  princi 
pally  contained  in  the  Constitution,  Art.  II.  Sect.  1,  Cl.  1  and  7  ;  Sect.  2,  Cl.  1 ; 
Sect.  3,  Cl.  1 ;  and  in  Sect.  1,  Cl.  1,  and  by  necessary  implication  in  Art.  I. 
Sect.  9,  Cl.  2.  By  Art.  II.  Sect.  2,  the  President  is  made  commander-in- chief 
of  the  army  and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
States  when  called  into  the  service  of  the  United  States.  This  clause  gives 
ample  powers  of  war  to  the  President,  when  the  army  and  navy  are  lawfully  in 
"  actual  service."  His  military  authority  is  supreme,  under  the  constitution, 
while  governing  and  regulating  the  land  and  naval  forces,  and  treating  captures 
on  land  and  water  in  accordance  with  such  rules  as  Congress  may  have  passed 
in  pursuance  of  Art.  I.  Sect.  8,  Cl.  11,  14.  Congress  may  effectually  con 
trol  the  military  power,  by  refusing  to  vote  supplies,  or  to  raise  troops, 
and  by  impeachment  of  the  President ;  but  for  the  military  movements,  and 
measures  essential  to  overcome  the  enemy,  —  for  the  general  conduct  of  the 
war,  —  the  President  is  responsible  to  and  controlled  by  no  other  department  of 
government.  His  duty  is  to  uphold  the  constitution  and  enforce  the  laws,  and 
to  respect  whatever  rights  loyal  citizens  are  entitled  to  enjoy  in  time  of  civil 
war,  to  the  fullest  extent  that  may  be  consistent  with  the  performance  of  the 
military -duty  imposed  on  him.  The  effect  of  a  state  of  war,  in  changing  or  mod 
ifying  civil  rights,  has  been  explained  in  the  preceding  chapters. 

What  is  the  extent  of  the  military  power  of  the  President  over  the  persons 
and  property  of  citizens  at  a  distance  from  the  seat  of  war  —  whether  he  or 
the  war  department  may  lawfully  order  the  arrest  of  citizens  in  loyal  states  on 
reasonable  proof  that  they  are  either  enemies  or  aiding  the  enemy  —  or  that 
they  are  spies  or  emissaries  of  rebels  sent  to  gain  information  for  their  use,  or 


WAR   POWER    OF   THE   PRESIDENT.  83 

to  discourage  enlistments  —  whether  martial  law  may  be  extended  over  such 
places  as  the  commander  deems  it  necessary  to  guard,  even  though  distant  from 
any  battle  field,  in  order  to  enable  him  to  prosecute  the  war  effectually  — 
whether  the  writ  of  habeas  corpus  may  be  suspended  as  to  persons  under  mili 
tary  arrest,  by  the  President,  or  only  by  Congress,  (on  which  point  judges  of 
the  United  States  courts  disagree)  ;  whether,  in  time  of  war,  all  citizens  are  liable 
to  military  arrest,  on  reasonable  proof  of  their  aiding  or  abetting  the  enemy  — 
or  whether  they  are  entitled  to  practise  treason  until  indicted  by  some  grand  jury 
—  thus,  for  example,  whether  Jefferson  Davis,  or  General  Lee,  if  found  in  Bos 
ton,  could  be  arrested  by  military  authority  and  sent  to  Fort  Warren  ?  "Whether, 
in  the  midst  of  wide-spread  and  terrific  war,  those  persons  who  violate  the  laws 
of  war  and  the  laws  of  peace,  traitors,  spies,  emissaries,  brigands,  bush-rangers, 
guerrillas,  persons  in  the  free  States  supplying  arms  and  ammunition  to  the 
enemy,  must  all  be  proceeded  against  by  civil  tribunals  only,  under  due  forms 
and  precedents  of  law,  by  the  tardy  and  ineffectual  machinery  of  arrests  by 
marshals,  (who  can  rarely  have  means  of  apprehending  them,)  and  of  grand 
juries,  (who  meet  twice  a  year,  and  could  seldom  if  ever  seasonably  secure  the 
evidence  on  which  to  indict  them)  ?  Whether  government  is  not  entitled  by 
military  power  to  PREVENT  the  traitors  and  spies,  by  arrest  and  imprisonment, 
from  doing  the  intended  mischief,  as  well  as  to  punish  them  after  it  is  done  ? 
Whether  war  can  be  carried  on  successfully,  without  the  power  to  save  the 
army  and  navy  from  being  betrayed  and  destroyed,  by  depriving  any  citizen 
temporarily  of  the  power  of  acting  as  an  enemy,  whenever  there  is  reasonable 
cause  to  suspect  him  of  being  one  ?  Whether  these  and  similar  proceedings 
are,  or  are  not,  in  violation  of  any  civil  rights  of  citizens  under  the  constitution, 
are  questions  to  which  the  answers  depend  on  the  construction  given  to  the  war 
powers  of  the  Executive.  Whatever  any  commander-in- chief,  in  accordance 
with  the  usual  practice  of  carrying  on  war  among  civilized  nations,  may  order 
his  army  and  navy  to  do,  is  within  the  power  of  the  President  to  order  and  to 
execute,  because  the  constitution,  in  express  terms,  gives  him  the  supreme 
command  of  both.  If  he  makes  war  upon  a  foreign  nation,  he  should  be  gov 
erned  by  the  law  of  nations  ;  if  lawfully  engaged  in  civil  war,  he  may  treat  his 
enemies  as  subjects  and  as  belligerents. 

The  constitution  provides  that  the  government  and  regulation  of  the  land 
and  naval  forces,  and  the  treatment  of  captures,  should  be  according  to  law ; 
but  it  imposes,  in  express  terms,  no  other  qualification  of  the  war  power  of  the 
President.  It  does  not  prescribe  any  territorial  limits,  within  the  United 
States,  to  which  his  military  operations  shall  be  restricted  ;  nor  to  which  the 
picket  guard,  or  military  guards  (sometimes  called  provost  marshals)  shall  be 
confined.  It  does  not  exempt  any  person  making  war  upon  the  country,  or 
aiding  and  comforting  the  enemy,  from  being  captured,  or  arrested,  wherever 
he  may  be  found,  whether  within  or  out  of  the  lines  of  any  division  of  the  army. 
It  does  not  provide  that  public  enemies,  or  their  abettors,  shall  find  safe  asylum 
in  any  part  of  the  United  States  where  military  power  can  reach  them.  It 
requires  the  President,  as  an  executive  magistrate,  in  time  of  peace  to  see  that 
the  laws  existing  in  time  of  peace  are  faithfully  executed  —  and  as  commander- 
in-chief,  in  time  of  war,  to  see  that  the  laws  of  war  are  executed.  In  doing  both 
duties  he  is  strictly  obeying  the  constitution. 


84  ATTAINDER. 


CHAPTER    IV. 

BILLS    OF    ATTAINDER. 

AFTER  the  authority  of  government  shall  have  been 
reestablished  over  the  rebellious  districts,  measures 
may  be  taken  to  punish  individual  criminals. 

The  popular  sense  of  outraged  justice  will  embody 
itself  in  more  or  less  stringent  legislation  against 
those  who  have  brought  civil  war  upon  us.  It  would 
be.  surprising  if  extreme  severity  were  not  demanded 
by  the  supporters  of  the  Union  in  all  sections  of  the 
country.  Nothing  short  of  a  general  bill  of  attainder, 
it  is  presumed,  will  fully  satisfy  some  of  the  loyal 
people  of  the  slave  States. 

BILLS  OF  ATTAINDER  IN  ENGLAND. 

By  these  statutes,  famous  in  English  political  his 
tory,  tyrannical  governments  have  usually  inflicted 
their  severest  revenge  upon  traitors.  The  irresistible 
power  of  law  has  been  evoked  to  annihilate  the  crimi 
nal,  as  a  citizen  of  that  State  whose  majesty  he  had 
offended,  and  whose  existence  he  had  assailed.  His 
life  was  terminated  with  horrid  tortures ;  his  blood  was 
corrupted,  and  his  estates  were  forfeited  to  the  king. 
While  still  living,  he  was  deemed,  in  the  language  of 
the  law,  as  " civiliter  mortuus" 

PUNISHMENT  BY  ATTAINDER. 

The  refined  cruelty  which  characterized  the  punish 
ment  of  treason,  according  to  the  common  law  of  Eng- 


ATTAINDER.  85 

land,  would  have  been  discreditable  to  the  barbarism 
of  North  American  savages  in  the  time  of  the  Georges, 
and  has  since  been  equalled  only  by  some  specimens  of 
chivalry  in  the  secession  army.  The  mode  of  executing 
these  unfortunate  political  offenders  was  this  :  — 

1.  The  culprit  was  required  to  be  dragged  on  the 
ground  or  over  the  pavement  to  the  gallows ;  he  could 
not  be  allowed,  by  law,  to  walk  or  ride.     Blackstone 
says,  that  ~by  connivance^  at  last  ripened  into  law,  he  was 
allowed  to  be  dragged  upon  a  hurdle,  to  prevent  the 
extreme  torment  of  being  dragged  on  the  ground  or 

'pavement. 

2.  To  be  hanged  by  the  neck,  and  then  cut  down 
alive. 

3.  His  entrails  to  be  taken  out  and  burned  while  he 
was  yet  alive. 

4.  His  head  to  be  cut  off 

5.  His  body  to  be  divided  into  four  parts. 

6.  His  head  and  quarters  to  be  at  the  king's  dis 
posal.* 

Blackstone  informs  us  that  these  directions  were,  in 
former  times,  literally  and  studiously  executed.  Judge 
Story  observes,  they  "  indicate  at  once  a  savage  and 
ferocious  spirit,  and  a  degrading  subserviency  to  royal 
resentments,  real  or  supposed."  j- 


ATTAINDERS  PROHIBITED  AS  INCONSISTENT  WITH    CONSTITUTIONAL 

LIBERTY. 

Bills  of  attainder  struck  at  the  root  of  all  civil  rights 
and  political  liberty.     To  declare  single  individuals,  or 

*  4  Bla.  Com.  92. 

j  Lord  Coke  undertakes  to  justify  the  severity  of  this  punishment  by  examples  drawn 
from  Scripture. 


86  ATTAINDER. 

a  large  class  of  persons,  criminals,  in  time  of  peace, 
merely  upon  the  ground  that  they  entertained  certain 
opinions  upon  questions  of  church  or  state ;  to  do  this 
by  act  of  Parliament,  without  a  hearing,  or  after  the 
death  of  the  alleged  offender ;  to  involve  the  innocent 
with  the  guilty  in  indiscriminate  punishment,  —  was  an 
outrage  upon  the  rights  of  the  people  not  to  be  toler 
ated  in  our  constitution  as  one  of  the  powers  of  gov 
ernment. 

BILLS    OF    ATTAINDER  ABOLISHED. 

The  constitution  provides  expressly,  *  that  no  bill 
of  attainder,  or  ex  post  facto  law,  shall  be  passed  by  Con 
gress  ;  and  that  no  State  shall  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  con 
tracts,  f  There  is,  therefore,  no  power  in  this  country 
to  pass  any  bill  of  attainder. 

WHAT   IS   A  BILL  OF  ATTAINDER? 

Wherein  does  it  differ  from  other  statutes  for  the 
punishment  of  criminals  ? 

A  "bill  of  attainder,"  in  the  technical  language  of 
the  law,  is  a  statute  by  which  the  offender  becomes 
"  attainted,"  and  is  liable  to  punishment  without  having 
been  convicted  of  any  crime  in  the  ordinary  course  of 
judicial  proceedings. 

If  a  person  be  expressly  named  in  the  bill,  or  comes 
within  the  terms  thereof,  he  is  liable  to  punishment. 
The  legislature  undertakes  to  pronounce  upon  the  guilt 
of  the  accused  party.  He  is  entitled  to  no  hearing, 
when  living,  and  may  be  pronounced  guilty  when  ab- 

*  Art.  I.  Sect.  9.  f  Art,  I.  Sect.  10. 


ATTAINDER.  87 

sent  from  the  country,  or  even  long  after  his  death. 
Lord  Coke  says  that  the  reigning  monarch  of  England, 
who  was  slain  at  Bosworth,  is  said  to  have  been  at 
tainted  by  act  of  Parliament  a  few  months  after  his 
death,  notwithstanding  the  absurdity  of  deeming  him 
at  once  in  possession  of  a  throne  and  a  traitor.* 

A  question  has  been  raised,  whether  any  statute  can 
be  deemed  a  bill  of  attainder  if  it  inflicts  a  degree  of 
punishment  less  than  that  of  death  ? 

In  technical  law,  statutes  were  called  bills  of  attainder 
only  when  they  inflicted  the  penalty  of  death  or  out 
lawry  ;  while  statutes  which  inflicted  only  forfeitures, 
fines,  imprisonments,  and  similar  punishments,  were 
called  bills  of  "  pains  and  penalties."  This  distinction 
was  practically  observed  in  the  legislation  of  England. 
No  bill  of  attainder  can  probably  be  found  which  did 
not  contain  the  marked  feature  of  the  death  penalty, 
or  the  penalty  of  outlawry,  which  was  considered  as 
equivalent  to  a  judgment  of  death.  Judgment  of  out 
lawry  on  a  capital  crime,  pronounced  for  absconding  or 
fleeing  from  justice,  was  founded  on  that  which  was  in 
law  deemed  a  tacit  confession  of  guilt,  f 

B^LLS   OF   PAINS  AND  PENALTIES, 

It  has  been  said  that  within  the  sense  of  the  consti 
tution,  bills  of  attainder  include  bills  of  pains  and 
penalties ;  and  this  view  seemed  to  derive  support  from 
a  remark  of  a  judge  of  the  Supreme  Court.  "  A  bill  of 
attainder  may  affect  the  life  of  an  individual,  or  may 
confiscate  his  property,  or  both."  J 

It  is  true  that  a  bill  of  attainder  may  affect  the  life 

*  See  Story  on  the  Constitution,  B.  III.  Sect.  G78. 

f  Standf.  PI.  Co.  44,  122,  182.  }  Fletcher  v.  Peck,  6  Cranch,  R- 


88  ATTAINDER. 

of  an  individual ;  but  if  the  individual  attainted  were 
dead  before  the  passage  of  the  act,  as  was  the  case  with 
Richard  III.,  the  bill  could  not  affect  his  life ;  or  if  a 
bill  of  attainder  upon  outlawry  were  passed  against 
persons  beyond  seas,  the  life  of  the  party  would  not  be 
in  fact  affected,  although  the  outlawry  was  equivalent 
in  the  eye  of  the  law  to  civil  death.  There  is  nothing 
in  this  dictum  inconsistent  with  the  ancient  and  ac 
knowledged  distinction  between  bills  of  attainder  and 
bills  of  pains  and  penalties ;  nothing  which  would  au 
thorize  the  enlargement  of  the  technical  meaning  of 
the  words ;  nothing  which  shows  that  Judge  Marshall 
deemed  that  bills  of  attainder  included  bills  of  pains 
and  penalties  within  the  sense  of  the  constitution. 
This  dictum  is  quoted  by  Judge  Story/1"  who  supposed 
its  meaning  went  beyond  that  which  is  now  attributed 
to  it.  But  he  does  not  appear  to  sanction  such  a  view 
of  the  law.  This  is  the  only  authority  to  which  he 
refers ;  and  he  introduces  the  proposed  construction 
of  this  clause  by  language  which  is  used  by  lawyers 
who  have  little  confidence  in  the  result  which  the  au 
thority  indicates,  viz.,  "  it  seems."  No  case  has  been 
decided  by  the  Supreme  Court  of  the  United  States 
which  shows  that  "  bills  of  attainder,"  within  the  sense 
of  the  constitution,  include  any  other  statutes  than 
those  which  were  technically  so  considered  according 
to  the  law  of  England. 

EX   POST    FACTO    LAWS    PROHIBITED.      BILLS   OF    PAINS    AND    PENAL 
TIES,    AS   WELL   AS   ATTAINDERS,   UNCONSTITUTIONAL.! 

It  does  not  seem  important  whether  the  one  or  the 
other  construction  be  put  upon  the  language  of  this 

*  Com.  Const.  III.  Ch.  32,  Sect.  3. 

t  See  note  to  Forty-third  Edition,  Ex  parte  Garland,  Appendix,  505.      Cummings  \. 
State  of  Missouri,  Appendix,  550.    See  Index,  title  "  Attainder." 


ATTAINDER.  89 

clause,  nor  whether  bills  of  pains  and  penalties  be  or  be 
not  included  within  the  prohibition ;  for  Congress  can 
pass  no  ex  post  facto  law ;  and  it  was  one  of  the  invari 
able  characteristics  of  bills  of  attainder,  and  of  bills  of 
pains  and  penalties,  that  they  were  passed  for  the  pun 
ishment  of  supposed  crimes  which  had  been  committed 
before  the  acts  were  passed. 

The  clause  prohibiting  Congress  from  passing  any 
ex  post  facto  law  would  doubtless  have  prevented  their 
passing  any  bill  of  attainder ;  but  this  prohibition  was 
inserted  from  greater  caution,  and  to  prevent  the 
exercise  of  constructive  powers  against  political  of 
fenders.  No  usurpation  of  authority  in  the  worst 
days  of  English  tyranny  was  more  detested  by  the 
framers  of  our  constitution  than  that  which  attempted 
to  ride  over  the  rights  of  Englishmen  to  gratify  royal 
revenge  against  the  friends  of  free  government.  Hence 
in  that  respect  they  shut  down  the  gate  upon  this 
sovereign  power  of  tyrants.  They  forbade  any  pun 
ishment,  under  any  form,  for  crime  not  against  some 
standing  law,  which  had  been  enacted  before  the  time 
of  its  commission.  They  prevented  Congress  from  pass 
ing  any  attainder  laws,  whereby  the  accused  might  be 
deprived  of  his  life,  or  his  estate,  or  both,  without  trial 
by  jury,  and  by  his  political  enemies;  and  whereby 
also  his  relatives  would  suffer  equally  with  himself. 

ATTAINDERS   IN  THE   COLONIES   AND  STATES. 

Laws  in  the  nature  of  bills  of  attainder  were  familiar 
to  our  ancestors  in  most  of  the  colonies  and  in  the 
States  which  subsequently  formed  the  Union.  And 
several  of  these  acts  of  attainder  have  been  pronounced 
valid  by  the  highest  courts  in  these  States.  By  the 
12 


90  ATTAINDER. 

act  of  the  State  of  New  York,  October  22,  177  9,  the 
real  and  personal  property  of  persons  adhering  to  the 
enemy  was  forfeited  to  the  State  ;  and  this  act  has  been 
held  valid,  *  and  proceedings  under  acts  of  attainder 
were,  as  the  court  held,  to  be  construed  according  to 
the  rules  in  cases  of  attainder,  and  not  by  the  ordinary 
course  of  judicial  proceedings ;  f  and  these  laws  ap 
plied  to  persons  who  were  dead  at  the  time  of  the  pro 
ceedings.  J 

"Bills  of  attainder,"  says  the  learned  judge,  (in  2 
Johnson's  Cases,)  "have  always  been  construed  in 
this  respect  with  more  latitude  than  ordinary  judicial 
proceedings,  for  the  purpose  of  giving  them  more  cer 
tain  effect,  and  that  the  intent  of  the  legislature  may 
prevail."  "  They  are  extraordinary  acts  of  sovereignty, 
founded  on  public  policy  §  and  the  peace  of  the  com 
munity."  "  The  attainted  person,"  says  Sir  Matthew 
H-ale,  "is  guilty  of  the  execrable  murder -of  the  king." 
The  act  of  New  York,  October  22,  1779,  attainted, 
among  others,  Thomas  Jones  of  the  offence  of  adhering 
to  the  enemies  of  the  State.  This  was  a  specific  offence, 
and  was  not  declared  or  understood  to  amount  to  trea 
son,  because  many  of  the  persons  attainted  had  never 
owed  allegiance  to  the  State.  [| 

Bills  of  attainder  were  passed  not  only  in  New  York, 
but  in  several  other  colonies  and  States,  inflicting  the 
penalties  of  attainder  for  other  crimes  than  treason, 
actual  or  constructive.  And  the  harsh  operation  of 
such  laws,  their  injustice,  and  their  liability  to  be  abused 


*  Sleight  v.  Kane,  2  Johns.  Gas.  23G,  decided  in  April,  1801. 

t  Jackson  v.  Sands,  2  Johns.  267. 

\  Jackson  v.  Stokes,  3  Johns.  15. 

§  Foster,  83,  84. 

||  Jackson  v.  Catlin,  2  Johns.  R.  260. 


ATTAINDER.  91 

in  times  of  public  excitement,  were  understood  by  those 
who  laid  the  foundations  of  this  government  too  well 
to  permit  them  to  disregard  the  dangers  which  they 
sought  to  avert,  by  depriving  Congress,  as  well  as  the 
several  States,  of  all  power  to  enact  such  cruel  statutes. 
If  bills  of  attainder  had  been  passed  only  for  the 
punishment  of  treason,  in  the  sense  of  making  war 
upon  the  government,  or  aiding  the  enemy,  they  would 
have  been  less  odious  and  less  dangerous ;  but  the  regi 
ment  of  crimes  which  servile  Parliaments  had  enrolled 
under  the  title  of  "  treason,"  had  become  so  formidable, 
and  the  brutality  of  the  civil  contests  in  England  had 
been  so  shocking,  that  it  was  thought  unsafe  to  trust 
any  government  with  the  arbitrary  and  irresponsible 
power  of  condemning  by  statute  large  classes  of  their 
opponents  to  death  and  destruction  for  that  which  only 
want  of  success  had  made  a  crime. 

BILLS   OF  ATTAINDER,   HOW  RECOGNIZED. 

The  consequences  of  attainder  to  the  estate  of  the 
party  convicted  will  be  more  fully  stated  hereafter ; 
but  it  is  essential  to  observe  that  there  are  certain  char 
acteristics  which  distinguish  bills  of  attainder  from  all 
other  penal  statutes. 

1.  They  always  inflict  the  penalty  of  death  upon  the 
offender,  or  of  outlawry,  which  is  equivalent  to  death. 

2.  They  are  always  ex  post  facto  laws,  being  passed 
after   the   crime   was    committed  which  they  are   to 
punish. 

3.  They  never  allow  the   guilt  or  innocence  of  the 
persons  attainted  to  be  ascertained  by  trial ;  but  the 
guilt  is  attributed  to  them  by  act  of  Parliament. 

4.  They   always    impose    certain  penalties,  among 


92  ATTAINDER. 

which  are  corruption  of  blood  and  forfeiture  of  estate. 
The  essence  of  attainder  is  in  corruption  of  blood,  and 
without  the  corruption  of  blood  no  person  is  by  the 
English  law  attainted.  Unless  a  law  of  Congress  shall 
contain  these  characteristics,  penalty  of  death,  or  out 
lawry,  corruption  of  blood,  and  the  legislative,  not  ju 
dicial  condemnation  of  the  offender,  embodied  in  a  law 
passed  after  the  commission  of  the  crime  it  seeks  to  pun 
ish,  it  is  not  a  bill  of  attainder  within  the  meaning  of 
the  constitution.* 

*  Note  to  Forty-third  Edition.  —  See  the  opinion  of  dissenting  judges  in  Ex  parte  Gar 
land,  p.  569 ;  Drehman  v.  Stifle,  8  Wallace,  595 ;  Bigelow  v.  Forest,  App.  610 ;  Cum- 
mings  v.  State  of  Missouri,  App.  556;  Index,  "  Attainder." 


INTRODUCTION  TO   CHAPTER  V. 


UNDER  the  English  law,  prior  to  the  Revolution,  there  had  been  three  modes 
of  punishing  the  crime  of  Treason.  First,  by  bills  of  attainder.  Second,  by 
judicial  attainder.  Third,  by  statutes  of  the  realm  against  treason,  actual  and 
constructive.  Bills  of  attainder  were  acts  of  Parliament,  which  declared  one  or 
more  persons,  whether  living  or  dead,  or  absent  beyond  seas,  guilty  of  the  crime 
of  actual  or  constructive  treason.  Judicial  attainder  was  effected  in  the  courts 
of  law  by  process  issued  against  persons  accused  of  treason,  whether  living  or 
dead,  or  absent  beyond  seas.  The  effect  of  attainder  by  judicial  process  was 
substantially  the  same  as  that  of  attainder  by  act  of  Parliament,  in  working 
corruption  of  blood,  and  likewise  forfeiture  of  estates  during  the  life  of  the 
offender,  and  after  he  was  dead. 

Persons  accused  of  treason  were  punishable  under  statutes,  by  death  and 
total  forfeiture  of  estates ;  but  no  one  could  be  convicted,  sentenced,  and  pun 
ished  for  treason,  under  statutes.  "  except  during  his  life,"  that  is  to  say,  while 
alive,  nor  unless  he  had  received  a  trial  in  court,  conducted  according  to  the 
usual  forms  of  procedure. 

By  our  Constitution,  all  power  is  taken  from  the  General  Government,  and 
from  all  the  States,  to  punish  treason  by  passing  any  bill  of  attainder,  as  is 
shown  in  Chapter  IV. 

Congress  has  power  to  authorize  courts  to  punish  treason  by  judicial  attain 
der  ;  but  the  Constitution  has  limited  the  time  during  which  such  process  may 
be  applied,  and  its  effect,  in  these  words  : 

"  But  no  attainder  of  treason  shall  work  corruption  of  blood  or  forfeiture 
except  during  the  life  of  the  person  attainted." 

These  provisions  apply  only  to  judicial  attainder,  and  not  to  punishments  of 
treason  under  ordinary  statutes  of  Congress,  which  provide  for  no  attainder. 

The  constitutional  power  of  Congress  to  authorize  proceedings  for  judicial 
attainder  of  persons  who  have  committed  treason,  has  not  been,  thus  far,  car 
ried  into  effect. 

No  process  of  attainder  of  treason,  is  now  known  in  our  municipal  law. 
To  guard  against  abuse,  under  which  our  forefathers  in  England  suffered, 
by  reason  of  unjust  and  arbitrary  definitions  of  treason,  the  Constitution  pre 
scribes  certain  rules  for  the  definition,  proof,  and  punishment  of  offences  under 
statute  law,  which  Congress  may  pass  for  the  punishment  of  that  crime.     It 


94  INTRODUCTION    TO    CHAPTER    V. 

defines  treason  to  be  "  a  levying  of  war  against  the  United  States,"  thus  cutting 
off  all  the  other  descriptions  of  treason  known  to  the  English  law.  It  requires, 
in  proof  of  treason,  that  there  shall  be  two  witnesses  to  each  overt  act  with 
which  the  accused  is  charged.  A  trial  by  jury  in  open  court,  and  in  the  pres 
ence  of  witnesses,  is  secured,  but  when  one  is  convicted  he  is  liable  to  such 
punishment  as  may  have  been  prescribed  by  the  statute,  and  there  is  no  limit  in 
the  Constitution  to  the  penalty  which  Congress  may  provide. 

Thus  the  traitor  may  be  subjected  to  punishment  by  death,  and  to  the  forfeit 
ure  of  all  his  estate,  or  to  fine  to  an  unlimited  amount.  The  criminal,  how 
ever,  may  not  be,  and  by  existing  laws  is  not,  attainted,  or  subject  to  any  of  the 
effects  of  attainder,  by  these  proceedings.  The  limitations  of  the  Constitution 
are  inapplicable  to  statutes  which  do  not  provide  for  attainder  but  only  foi 
penalties  of  death  and  confiscation, 


PUNISHMENT    OF   TREASON.  95 


CHAPTER    V. 

RIGHT  OF  CONGRESS  TO  DECLARE  BY  STATUTE  THE  PUN 
ISHMENT  OF  TREASON,  AND  ITS  CONSTITUTIONAL  LIMI- 
TATIONS. 

TREASON. 

THE  highest  crime  known  to  the  law  is  treason.  It  is 
"  the  sum  of  all  villanies ;  "  its  agents  have  been  branded 
with  infamy  in  all  countries  where  fidelity  and  justice 
have  respect.  The  name  of  one  who  betrays  his  friend 
becomes  a  byword  and  a  reproach.  How  much  deeper 
are  the  guilt  and  infamy  of  the  criminal  who  betrays 
his  country  !  No  convict  in  our  State  prisons  can  have 
fallen  so  low  as  willingly  to  associate  with  a  TRAITOR. 
There  is  no  abyss  of  crime  so  dark,  so  horrible,  as  that 
to  which  the  traitor  has  descended.  He  has  left  for 
ever  behind  him  conscience,  honor,  and  hope. 

ANCIENT    ENGLISH    DOCTRINE    OF  CONSTRUCTIVE  TREASON. 

Treason,  as  defined  in  the  law  of  England,  at  the 
date  of  the  constitution,  embraced  many  misdemeanors 
which  are  not  now  held  to  be  crimes.  Offences  of  a  po 
litical  character,  not  accompanied  with  any  intention  to 
subvert  the  government ;  mere  words  of  disrespect  to 
the  ruling  sovereign ;  assaults  upon  the  king's  officers 
at  certain  times  and  places ;  striking  one  of  the  judges 
in  court;  and  many  other  acts  which  did  not  partake 
of  the  nature  of  treason,  were,  in  ancient  times,  declared 
treason  by  Parliament,  or  so  construed  by  judges,  as 
to  constitute  that  crime.  Indeed,  there  was  nothing  to 


96  PUNISHMENT    OF   TREASON. 

prevent  Parliament  from  proclaiming  any  act  of  a  sub 
ject  to  be  treason,  thereby  subjecting  him  to  all  its  ter 
rible  penalties.  The  doctrine  of  constructive  treasons, 
created  by  servile  judges,  who  held  their  office  during 
the  pleasure  of  the  king,  was  used  by  them  in  such  a 
way  as  to  enable  the  sovereign  safely  to  wreak  ven 
geance  upon  his  victims  under  the  guise  of  judicial 
condemnation.  If  the  king  sought  to  destroy  a  rival, 
the  judges  would  pronounce  him  guilty  of  constructive 
treason;  in  other  words,  they  would  so  construe  the 
acts  of  the  defendant  as  to  make  them  treason.  Thus 
the  king  could  selfishly  outrage  every  principle  of 
law  and  justice,  wrhile  avoiding  responsibility.  No 
man's  life  or  property  was  safe.  The  wealthier  the 
citizen,  the  greater  was  his  apprehension  that  the  king 
would  seize  and  confiscate  his  estates.  The  danger 
lay  in  the  fact  that  the  nature  and  extent  of  the  legal 
crime  of  treason  was  indeterminate,  or  was  left  to 
arbitrary  determination.  The  power  to  define  treason, 
to  declare  from  time  to  time  who  should  be  deemed  in 
law  to  be  traitors,  was  in  its  nature  an  arbitrary  power. 
No  government  having  that  power  would  fail  to  become 
oppressive  in  times  of  excitement,  and  especially  in 
civil  war.  As  early  as  the  reign  of  Edward  III.,  Parlia 
ment  put  an  end  to  these  judge-made-treasons  by  de 
claring  and  defining  all  the  different  acts  which  should 
be  deemed  treason ;  and,  although  subsequent  statutes 
have  added  to  or  modified  the  law,  yet  treason  has  at 
all  times  since  that  reign  been  defined  by  statute. 

POWER    OF  CONGRESS   TO    DEFINE    AND    PUNISH    TREASON    LIMITED. 

It  was  with  full  knowledge  of  the  history  of  judicial 
usurpation,    of  the    tyranny    of   exasperated    govern- 


PUNISHMENT    OF   TREASON.  97 

ments,  and  of  the  tendency  of  rival  factions  in  repub 
lics  to  seek  revenge  on  each  other,  that  the  convention 
which  framed  the  constitution,  having  given  no  power 
to  the  judiciary,  like  that  possessed  by  English  judges, 
to  make  constructive  crimes,  introduced  several  pro 
visions  limiting  the  power  of  Congress  to  define  and 
punish  the  political  crime  of  treason,  as  well  as  other 
offences.  The  various  clauses  in  the  constitution  relat 
ing  to  this  siibject,  in  order  to  a  clear  exposition  of 
their  meaning,  should  be  taken  together  as  parts  of 
one  system. 

v 
ATTAINDER  AND   EX  POST  FACTO  LAWS. 

The  first  and  most  important  limitation  of  the  power 
of  Congress  is  found  in  Art,  I,  Sect.  9  :  "No  bill  of  at 
tainder  or  ex  post  facto  law  shall  be  passed."  By  pro 
hibiting  bills  of  attainder,  no  subject  could  be  made  a 
criminal,  or  be  deprived  of  life,  liberty,  or  property,  by 
mere  act  of  legislation,  without  trial  or  conviction.  The 
power  to  enact  ex  post  facto  laws  having  been  with 
held,  Congress  could  not  pass  "  a  statute  which  would 
render  an  act  punishable  in  a  manner  in  which  it  was 
not  punishable  when  it  was  committed."  No  man's  life 
could  be  taken,  nor  could  his  liberty  be  abridged,  nor 
his  estate,  nor  any  part  of  it,  be  seized,  unless  for  an 
act  which,  previously  to  the  commission  thereof,  had 
been  declared  by  law  to  be  a  crime,  nor  unless  the 
manner  and  extent  of  punishment  therefor  had  been 
prescribed.*  Hence  no  law  of  Congress  can  make 
that  deed  a  crime  which  was  not  so  before  the  deed 
was  done.  Every  man  may  know  what  are  the 

*  See  Fletcher  v.  Peck,  6  Cranch,  138. 

13 


98  PUNISHMENT    OF   TREASON. 

laws  to  which  he  is  amenable  in  time  of  peace  by  read 
ing  the  statutes.  There  can  be  no  retrospective  crimi 
nal  legislation  by  any  State,  or  by  the  United  States. 

TREASON  DEFINED  BY  STATUTE. 

These  points  having  been  secured,  the  next  step  was 
to  define  the  CRIME  OF  TREASON.  Countless  difficulties  and 
dangers  were  avoided  by  selecting  from  the  English 
statutes  one  crime  only,  which  should  be  deemed  to  con 
stitute  that  offence. 

The  constitution  provides  that,  "  Treason  against  the 
United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort."  *  Hence  many  acts  are  not  treasonable 
which  were  so  considered  according  to  the  law  of  Eng 
land,  and  of  the  colonies  and  States  of  this  country. 
Each  State  still  retains  the  power  to  define  and  punish 
treason  against  itself  in  its  own  way. 

Nothing  but  overt  acts  are  treasonable  by  the  laws  of 
the  United  States ;  and  these  overt  acts  must  be  overt 
acts  of  war.*)-  These  acts  must  be  proved  either  by 
confession  in  open  court,  or  by  two  witnesses  to  the 
same  act.  J  Our  ancestors  took  care  that  no  one 
should  be  convicted  of  this  infamous  crime,  unless  his 
guilt  is  made  certain.  So  odious  was  the  offence 
that  even  a  senator  or  representative  could  be  arrested 
on  suspicion  of  it.  §  All  civil  officers  were  to  be  removed 
from  office  on  impeachment  and  conviction  thereof.  || 
And  a  person  charged  with  treason  against  a  State,  and 
fleeing  from  that  State  to  another,  was  to  be  delivered 


*  Art.  III.  Sect.  3.  f  Ibid.  $  Ibid, 

§  Art.  I.  Sect.  6.  ||  Art.  II.  Sect.  4. 


PUNISHMENT    OF   TREASON.  99 

up,  on  demand,  to  the  State  having  jurisdiction.*  The 
crime  being  defined,  and  the  nature  of  the  testimony 
to  establish  it  being  prescribed,  and  conviction  being 
possible  only  in  "  open  court,"  the  constitution  then 
provides,  that  "  Congress  shall  have  power  to  declare 
the  punishment  of  treason,  but  no  attainder  of  treason 
shall  work  corruption  of  blood,  or  forfeiture  except  dur 
ing  the  life  of  the  person  attainted."  f 

THE   POWER    OF  THE   LEGISLATURE    TO    DECLARE    THE    PUNISHMENT 
OF  TREASON  IS   UNLIMITED. 

By  Art.  III.,  Sect.  3,  above  cited,  the  constitution 
has  in  express  terms  given  to  Congress  the  power  to 
declare  the  punishment  of  treason.  As  the  manner  and 
extent  of  that  punishment  are  not  prescribed,  it  may 
impose  the  penalties  of  fine,  or  imprisonment,  or  out 
lawry,  or  banishment,  or  forfeiture,  or  death,  or  of  death 
and  forfeiture  of  property,  personal  and  real ;  and  it 
might  add  to  all  these  inflictions  the  more  terrible  suf 
ferings  which  follow,  as  a  consequence  of  attainder  of  trea 
son,  under  the  law  of  England,  had  the  constitution  not 
limited  the  effect  and  operation  of  that  species  of 
attainder. 

MISINTERPRETATION   OF  ART.   III.,   SECT.  3. 

Some  writer,  have  supposed  that  this  article  in  the 
constitution,  which  qualifies  the  effect  of  an  attainder  of 
treason,  was  a  limitation  of  the  power  of  Congress  to  de 
clare  the  punishment  of  treason.  This  is  an  error.  A 
careful  examination  of  the  language  used  in  the  in- 

*  Constitution,  Art.  IV.,  Sect.  2. 
t  Art.  III.,  Sect.  3. 


100  PUNISHMENT    OF   TREASON. 

strument  itself,  and  of  the  history  of  the  English  law 
of  attainder,  will  make  it  evident  that  the  framers  of 
the  constitution,  in  drafting  Sect.  3  of  Art.  III.  did  not 
design  to  restrain  Congress  from  declaring  against  the 
traitor  himself,  his  person  or  estate,  such  penalties 
as  it  might  deem  sufficient  to  atone  for  the  highest  of 
crimes. 

Whenever  a  person  had  committed  high  treason  in 
England,  and  had  been  duly  indicted,  tried,  and  con 
victed,  and  when  final  judgment  of  guilty,  and  sentence 
of  death  or  outlawry,  had  been  pronounced  upon  him, 
the  immediate  and  inseparable  consequence,  by  com 
mon  law,  of  the  sentence  of  death  or  outlawry  of  the 
offender  for  treason,  and  for  certain  other  felonies,  was 
attainder.  Attainder  means,  in  its  original  application, 
the  staining  or  corruption  of  the  blood  of  a  criminal 
who  was  in  the  contemplation  of  law  dead.  He  then 
became  "  attinctus  —  stained,  blackened,  attainted." 

CONSEQUENCES  OF  ATTAINDER. 

Certain  legal  results  followed  attainder,  among 
which  are  the  following :  The  convict  was  no  longer  of 
any  credit  or  reputation.  He  could  not  be  a  witness 
in  any  court.  He  was  not  capable  of  performing  the 
legal  functions  of  any  other  man ;  his  power  to  sell  or 
transfer  his  lands  and  personal  estate  ceased.  By  anti 
cipation  of  his  punishment  he  was  already  dead  in  law,* 
except  when  the  fiction  of  the  law  would  protect  him 
from  some  liability  to  others  which  he  had  the  power 
to  discharge.  It  is  true  that  the  attainted  felon  could 
not  be  murdered  with  impunity ,f  but  the  law  preserved 

*  3  Inst.  213.  t  Foster,  73. 


PUNISHMENT    OF    TREASON.  101 

his  physical  existence  only  to  vindicate  its  own  majesty, 
and  to  inflict  upon  the  offender  an  ignominious  death. 

CORRUPTION  OF  BLOOD. 

Among  the  most  important  consequences  of  attainder 
of  felony,  were  those  resulting  from  "corruption  of  blood" 
which  is  the  essence  of  attainder.*  Blackstone  says/)*  — 

"  Another  immediate  consequence  of  attainder  is  the  corruption  of 
blood,  both  upwards  and  downwards ;  so  that  an  attainted  person  can 
neither  inherit  lands  or  other  hereditaments  from  his  ancestors,  nor 
retain  those  he  is  already  in  possession  of,  nor  transmit  them  by  descent 
to  any  heir  ;  but  the  same  shall  escheat  to  the  lord  of  the  fee,  subject 
to  the  king's  superior  right  of  forfeiture  ;  and  the  person  attainted 
shall  also  obstruct  all  descents  to  his  posterity  whenever  they  are 
obliged  to  derive  a  title  through  him,  to  a  remote  ancestor." 

The  distinctions  between  escheat  and  forfeiture  it  is 
not  necessary  now  to  state,  J  because,  whether  the  for 
feiture  enured  to  the  benefit  of  the  lord  or  of  the  king, 
the  effect  was  the  same  upon  the  estate  of  the  criminal.  § 
By  this  legal  fiction  of  corruption  of  blood,  the  offender 
was  deprived  of  all  his  estate,  personal  and  real ;  his 
children  or  other  heirs  could  not  inherit  any  thing  from 
him,  nor  through  him  from  any  of  his  ancestors.  "  If 
a  father  be  seized  in  fee,  and  the  son  commits  treason 
and  is  attainted,  and  then  the  father  dies,  then  the 
lands  shall  escheat  to  the  lord."  || 

SAVAGE  CRUELTY  OF  ENGLISH  LAW. 

By  the  English  system  of  escheats  to  the  lord  and 
forfeitures  to  the  king,  the  innocent  relatives  of  the 
offender  were  punished,  upon  the  theory  that  it  was 

*  See  Co.  Litt.  391.  f  4  Com.  b.  388.  J  See  Co.  Litt.  13. 

§  Co.  Litt.  391.    Bla.  Com.  Vol.  II.  p.  254.  ||  Co.  Litt.  13. 


102  PUNISHMENT    OF   TREASON. 

the  duty  of  every  family  to  secure  the  loyalty  of  all  its 
members  to  the  sovereign ;  and  upon  failure  to  do  so, 
the  whole  family  should  be  plunged  into  lasting  dis 
grace  and  poverty.  A  punishment  which  might  con 
tinue  for  twenty  generations,  was  indeed  inhuman,  and 
received,  as  it  merited,  the  condemnation  of  liberal  men 
in  all  countries ;  *  but  aristocratic  influence  in  England 
had  for  centuries  resisted  the  absolute  and  final  aban 
donment  of  these  odious  penalties.  The  framers  of 
the  constitution  have  deprived  Congress  of  the  power 
of  passing  bills  of  attainder.  They  might  have  pro 
vided  that  no  person  convicted  of  treason  should  be 
held  to  be  attainted,  or  be  liable  to  suffer  any  of  the 
common  law  penalties  which  resulted  from  attainder, 
but  only  such  penalties  as  Congress  should  prescribe 
by  statute.  They  have,  however,  not  in  terms,  abolished 
attainders,  but  have  modified  their  effect,  by  declaring 
that  attainder  shall  not  work  corruption  of  blood. 


FORFEITURES. 


By  the  law  of  England,  forfeiture  of  estates  was  also 
one  of  the  necessary  legal  consequences  of  attainder  of 
felony.  Real  estate  was  forfeited  upon  attainder,  per 
sonal  estate  upon  conviction  before  attainder.  By 
these  forfeitures  all  the  property,  rights,  and  claims,  of 
every  name  and  nature,  went  to  the  lord  or  the  king. 
But  forfeiture  of  lands  related  back  to  the  time  when 
the  felony  was  committed,  so  as  to  avoid  all  subsequent 
sales  and  encumbrances,  but  forfeiture  of  goods  took 
effect  at  the  date  of  conviction,  so  that  sales  of  person 
al  property,  prior  to  that  time,  were  valid,  unless  col- 


*  See  4  Bla.  Com. 


PUNISHMENT    OF    TREASON.  103 

lusive.*  The  estates  thus  forfeited  were  not  mere 
estates  for  life,  but  the  whole  interest  of  the  felon,  what 
ever  it  might  be.  Thus  forfeiture  of  property  was  a 
consequence  of  attainder ;  attainder  was  a  consequence 
of  the  sentence  of  death  or  outlawry ;  and  these  penal 
consequences  of  attainder  were  over  and  above,  and  in 
addition  to,  the  penalties  expressed  in  the  terms  of 
the  judgment  and  sentence  of  the  court:\  The  punishment, 
and  in  many  instances  the  only  punishment,  to  which 
the  sentence  of  the  court  condemned  the  prisoner,  was 
death  or  outlawry.  The  disabilities  which  resulted  from 
that  sentence  were  like  the  disabilities  which  in  other 
cases  result  from  the  sentence  of  a  criminal  for  in 
famous  crimes.  Disability  to  testify  in  courts,  or  to 
hold  offices  of  trust  and  honor,  sometimes  follows,  not 
as  part  of  the  punishment  prescribed  for  the  offence, 
but  as  a  consequence  of  the  condition  to  which  the 
criminal  has  reduced  himself. 

There  is  a  clear  distinction  between  the  punishment 
of  treason  by  specific  penalties  and  those  consequential 
damages  and  injuries  which  follow  by  common  law  as 
the  result  or  technical  effect  of  a  sentence  of  death  or 
outlawry  for  treason,  viz.,  attainder  of  treason,  and  cor 
ruption  of  blood  and  forfeiture  of  estates.  J  To  set  this 
subject  in  a  clearer  light,  the  learned  reader  will  rec 
ollect  that  there  were  different  kinds  of  attainder: 


*  See  Stat.  13  Eliz.  chap.  5;  2  B.  &  A.  258;  2  Hawkins's  P.  C.454;  3  Ins.  232;  4Bla.  387; 
€o.  Litt.  391,  b. 

t  See  2  Greenleafs  Cruise  on  Real  Property,  p.  145,  and  note;  2  Kent,  380;  1  Green- 
leaf's  Cruise,  p.  71,  sect.  1,  and  note. 

\  There  is  a  provision  in  the  new  constitution  of  Maryland  (1851),  that  "  no  conviction 
shall  work  corruption  of  blood  or  forfeiture  of  estate."  (Decl.  of  Rights,  Art.  24.)  The 
constitution  of  Ohio  (1851)  contains  the  same  words  in  the  12th  section  of  the  Declaration 
of  Rights.  The  constitutions  of  Kentucky,  Delaware,  and  Pennsylvania  declare  that 


104  PUNISHMENT    OF    TREASON. 

1.  Attainders  in  a prcemunire ;  in  which,  "from  the  convic 
tion,  the  defendant  shall  be  out  of  the  king's  protection, 
his  lands,  tenements,  goods,  and  chattels  forfeited  to  the 
king,  and  his  body  remain  in  prison  during  the  king's 
pleasure,  or  during  life."  *  But  the  offences  punishable 
under  the  statutes  of  praemunire  were  not  felonies,  for 
the  latter  are  punishable  only  by  common  "law,  and 
not  by  statute.^  2.  Attainder  ly  bill.  3.  Attainders  of 
FELONY  and  treason ;  and  the  important  distinction  be 
tween  attainders  in  treason  and  attainders  in  prsemu- 
nire  is  this :  that  in  the  former  the  forfeitures  are  con 
sequences  of  the  judgment,  in  the  latter  they  are  part 
of  the  judgment  and  penalty.  BlackstoneJ  recognizes 
fully  this  distinction.  "  I  here  omit  the  particular  for 
feitures  created  by  the  statutes  of  praemunire  and 
others,  because  I  look  upon  them  rather  as  a  part  of 
the  judgment  and  penalty  inflicted  by  the  respective 
statutes,  than  as  consequences  of  such  judgment,  as  in 
treason  and  felony  they  are."  Lord  Coke  expresses  the 
same  opinion. §  And  statutes  of  prsemunire  and  at 
tainders  of  treason  are  both  different  in  law  from  bills 
of  pains  and  penalties  ;  of  which  English  history  affords, 
among  many  other  examples,  that  against  the  Bishop 

attainder  of  treason  shall  not  work  forfeiture  beyond  the  lifetime  of  the  offender.  In  Ala 
bama,  Connecticut,  Indiana,  Illinois,  Maine,  Missouri,  New  Jersey,  Rhode  Island,  and 
Tennessee,  all  forfeitures  for  crime  are  abolished,  either  by  statutes  or  constitutions. 

"  In  New  Hampshire,  Massachusetts,  Virginia,  Georgia,  Michigan,  Mississippi,  and 
Arkansas,  there  are  statutes  providing  specifically  for  the  punishment  of  treason  and 
felonies;  but  no  mention  is  made  of  corruption  of  blood  or  forfeiture  of  estate;  and 
inasmuch  as  these  offences  are  explicitly  legislated  upon,  and  a  particular  punishment 
provided  in  each  case,  it  may  be  gravely  doubted  whether  the  additional  common  law 
punishment  of  forfeiture  of  estate  ought  not  to  be  considered  as  repealed  by  implication." 
1  GreenleaPs  Cruise  Dig.  196,  note. 

*  1  Inst.  129;  3  Bla.  p.  118;  and  for  the  severity  of  the  penalties,  see  1  Hawk.  P.  C.  55. 

t  4  Bla.  118.  j  4  Com.  p.  380. 

§  Co.  Litt.  391,  b. 


PUNISHMENT    OF    TREASON.  105 

of  Rochester ;  •)•  in  the  latter  the  pains  and  penalties 
are  all  expressly  declared  by  statute,  and  not  left  as 
consequences  of  judgment.  That  clause  in  the  con 
stitution  which  gives  power  to  Congress  to  make  laws 
for  the  punishment  of  treason,  limits  and  qualifies  the 
effect  of  attainder  of  treason,  in  case  such  attainder 
should  be  deemed  by  the  courts  as  a  legal  consequence 
of  such  sentence  as  the  statute  requires  the  court  to 
impose  on  traitors.  This  limitation  applies,  in  terms, 
only  to  the  effect  of  attainders  of  treason. 

CHARACTERISTICS   OF  ATTAINDER  OF  TREASON. 

There  is  no  attainder  of  treason  known  to  the  law 
of  England,  unless,  1.  The  judgment  of  death  or  out 
lawry  has  been  pronounced  against  the  traitor.  J  2. 
Where  the  crime  was  a  felony,  and  punishable  accord 
ing  to  common  law  § ;  and,  3.  Where  the  attainder  was 
a  consequence  of  the  judgment,  and  not  part  of  the 
judgment  and  ^penalty.  ||  Congress  may  pass  a  law 
condemning  every  traitor  to  death,  and  to  the  conse 
quential  punishment  of  "  attainder ; "  but  such  attainder 
will  not  of  itself  operate  to  corrupt  blood  or  forfeit 
estate  except  during  the  life  of  the  offender.  But  unless 
Congress  pass  a  law  expressly  attainting  the  criminal  of 
treason,  there  is  not,  under  the  laws  of  the  United 
States,  any  "  attainder."  The  criminal  laws  of  the 
United  States  are  all  embraced  in  specific  statutes,  de 
fining  crimes  and  all  their  penalties.  No  consequential 

*  Stat.  9  Geo.  I.  cliap.  17.  t  4  Bla-  387. 

J  4  Bla.  387. 

§  Ib.;  Co.  Litt.  391,  b. ;  4  Bla.  386. 

14 


106  PUNISHMENT    OF    TREASON. 

penalties  of  this  character  are  known  to  this  law.  And 
if  a  person  is  convicted  and  sentenced  to  death  for 
treason,  there  can  be  no  corruption  of  blood,  nor  for 
feiture  of  estate  except  by  express  terms  of  the  statute. 
The  leading  principles  of  the  constitution  forbid  the 
making  of  laws  which  should  leave  the  penalty  of 
crime  to  be  determined  by  ancient  or  antiquated  com 
mon  law  proceedings  of  English  courts.  Forfeiture  of 
estate,  by  express  terms  of  statute,  may  be  in  the  nature 
of  forfeiture  by  a  bill  of  pains  and  penalties,  or  prsemu- 
nire,  but  is  not  forfeiture  by  attainder ;  nor  is  it  such 
forfeiture  as  is  within  the  sense  of  the  constitution, 
which  limits  the  operation  of  attainders  of  treason. 
This  distinction  was  well  known  to  the  framers  of  the 
constitution.  They  thought  it  best  to  guard  against 
the  danger  of  those  constructive  and  consequential 
punishments,  giving  full  power  to  Congress,  in  plain 
terms,  to  prescribe  by  statute  what  punishment  they 
should  select ;  but  in  case  of  resort  to  attainder  of 
treason,  as  one  of  those  punishments,  that  form  of  pun 
ishment  should  not  be  so  construed  as,  ex  vi  termini,  to 
corrupt  blood  nor  forfeit  estate  except  during  the  life 
of  the  person  attainted. 

TECHNICAL  LANGUAGE  TO  BE  CONSTRUED  TECHNICALLY. 

The  language  of  the  constitution  is  peculiar ;  it  is 
technical ;  and  it  shows  on  the  face  of  it  an  intention 
to  limit  the  technical  operation  of  attainders,  not  to 
limit  the  scope  or  extent  of  legislative  penalties.  If 
the  authors  of  the  constitution  meant  to  say  that  Con 
gress  should  pass  no  law  punishing  treason  by  attainder, 
or  by  its  consequences,  viz.,  forfeiture  of  estate,  or  cor- 


PUNISHMENT    OF   TREASON.  107 

ruption  of  blood,  they  would,  in  plain  terms,  have  said 
so ;  and  there  would  have  been  an  end  to  the  penalties 
of  attainder,  as  there  was  an  end  to  bills  of  attainder. 
Instead  of  saying,  "  Congress  shall  have  power  to  de 
clare  the  punishment  of  treason,  but  shall  not  impose 
the  penalties  of  attainder  upon  the  offender,"  they 
said,  "  Congress  shall  have  power  to  declare  the  punish 
ment  of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture  except  during  the 
life  of  the  person  attainted." 

This  phraseology  has  reference  only  to  the  technical 
effect  of  attainder.  The  "  working  of  forfeitures  "  is  a 
phrase  used  by  lawyers  to  show  the  legal  result  or  effect 
which  arises  from  a  certain  state  of  facts.  If  a  traitor 
is  convicted,  judgment  of  death  is  passed  upon  him; 
by  that  judgment  he  becomes  attainted.  Attainder 
works  forfeitures  and  corruption  of  blood ;  forfeitures 
and  corruption  of  blood  are,  in  the  ordinary  course  of 
common  law,  followed  by  certain  results  to  his  rights 
of  property.  But  the  constitution  provides,  if  the 
traitor  is  attainted,  that  attainder  shall  not,  ex  vi  termini, 
and  of  its  own  force,  and  without  statute  to  that  effect, 
"work"  forfeiture  or  corruption  of  blood.  The  con 
vict  may  still  retain  all  those  civil  rights  of  which  he 
has  not  been  deprived  by  the  strict  terms  of  the  statute 
which  shall  declare  the  punishment  of  treason.  That 
punishment,  as  provided  by  the  statute  of  the  United 
States  of  April  30,  1790,  is  death,  and  nothing  more. 
Can  any  case  be  found,  since  this  statute  was  enacted, 
in  which  a  party  convicted  and  adjudged  guilty  of 
treason  and  sentenced  to  death,  has  been  held  to  be 
"  attainted  "  of  treason,  so  that  the  attainder  has  worked 


108  PUNISHMENT   OF   TREASON. 

forfeiture  of  any  of  his  estate,  real  or  personal.  Would 
it  not  astonish  every  lawyer  if  a  court  of  the  United 
States,  having  sentenced  a  traitor  to  death  under  the 
law  of  1790,  should  announce  as  a  further  penalty, 
the  forfeiture  of  the  real  and  .personal  estate  of  the 
offender,  "  worked "  by  the  attainder  of  felony,  not 
withstanding  no  such  penalty  is  mentioned  in  that 
statute  ?  If  Congress  should  pass  an  act  punishing  a 
traitor  by  a  fine  of  five  dollars,  and  imprisonment  for 
five  years,  who  would  not  feel  amazed  to  learn  that 
in  accordance  to  the  English  doctrine  of  forfeitures 
worked  by  attainders,  the  criminal  would,  by  operation 
of  law,  be  stripped  of  property  worth'  thousands  of 
dollars,  in  addition  to  the  penalty  prescribed  in  the 
statute  under  which  he  had  been  convicted  ? 

TRUE  MEANING  OF  ART.  III.  SECT.  III.  CL.  II. 

The  constitution  means  that  if  traitors  shall  be  at 
tainted,  unlimited  forfeitures  and  corruption  of  blood 
shall  not  b'e  worked  by  attainders.  It  means  to  leave 
untrammelled  the  power  of  Congress  to  cause  traitors 
to  be  or  not  to  be  attainted ;  but  if  attainted,  Congress 
must  provide  by  statute  for  the  attainder ;  and  the 
constitution  settles  how  far  that  attainder  shall  operate 
consequentially  ;  and  when  the  legislature  has  awarded 
one  punishment  for  treason,  the  court  shall  not  evoke 
the  doctrine  of  forfeitures  worked  by  attainder,  and 
thus,  by  technical  implication,  add  punishments  not  spe 
cifically  set  down  in  the  penal  statute  itself;  or  if  this 
implication  exist,  the  results  of  the  technical  effect  of 
attainder  shall  not  be  corruption  of  blood,  or  forfeiture, 
except  during  the  life  of  the  offender.  The  third  ar- 


PUNISHMENT    OF    TREASON.  109 

ticle  does  not  limit  the  power  of  Congress  to  punish, 
but  it  limits  the  technical  consequences  of  a  special 
kind  of  punishment,  which  may  or  may  not  be  adopted 
in  the,  statutes. 

From  the  foregoing  remarks  it  is  obvious  that  no 
person  is  attainted  of  treason,  in  the  technical  sense, 
who  is  convicted  under  the  United  States  act  of  1790. 
There  can  be  no  attainder  of  treason,  within  the  meaning 
of  the  constitution,  unless  there  be,  first,  a  judgment  of 
death,  or  outlawry ;  second,  a  penalty  of  attainder  by 
express  terms  of  the  statute.  A  mere  conviction  of 
treason  and  sentence  of  death,  or  outlawry,  and  forfeit 
ures  of  real  and  personal  estate,  do  not  constitute  an 
attainder  in  form,  in  substance,  nor  in  effect,  when  made 
under  any  of  the  present  statutes  of  the  United  States. 

IF   CONGRESS    MAY  IMPOSE   FINES,   WHY    NOT    FORFEITURES  i 

No  one  doubts  the  power  of  Congress  to  make  trea 
son  punishable  with  death,  or  by  fines  to  any  amount 
whatever.  Nor  would  any  reasonable  person  deem  any 
fine  too  large  to  atone  for  the  crime  of  involving  one's 
own  country  in  civil  war.  If  the  constitution  placed 
in  Congress  the  power  to  take  life,  and  to  take  prop 
erty  of  the  offender  in  one  form,  why  should  it  deny 
the  power  to  take  property  in  any  other  form  ?  If  the 
framers  of  the  constitution  were  willing  that  a  traitor 
should  forfeit  his  life,  how  could  they  have  intended 
to  shelter  his  property  ?  Was  property,  in  their  opin 
ion,  more  sacred  than  life  ?  Would  all  the  property 
of  rebels  forfeited  to  the  treasury  of  the  country  repair 
the  injury  of  civil  wrar  ? 

*  See  Jefferson's  Notes,  pp.  162,  163. 


110  PUNISHMENT    OF    TREASON. 

FOKFEITURES   NOT   LIMITED  TO   LIFE  ESTATES. 

Could  the  jurists  who  drafted  the  constitution  have 
Intended  to  limit  the  pecuniary  punishment  of  forfeit 
ure  to  a  life  interest  in  personal  estate,  when  every 
lawyer  in  the  convention  must  have  known  that  at 
•  common  law  there  was  no  such  thing  as  a  life  estate  in 
personal  property  ?  Knowing  this,  did  they  mean  to 
protect  traitors,  under  all  circumstances,  in  the  enjoy 
ment  of  personal  property  ?  If  so,  why  did  they  not 
say  so  ?  If  they  meant  to  prevent  Congress  from  pass 
ing  any  law  that  should  deprive  traitors  of  more  than 
a  life  estate  in  real  estate,  the  result  would  be,  that  the 
criminal  would  lose  only  the  enjoyment  of  his  lands 
for  a  few  days  or  weeks,  from  the  date  of  the  judgment 
to  the  date  of  his  execution,  and  then  his  lands  would 
go  to  his  heirs.  Thus  it  is  evident,  that  if  the  consti 
tution  cuts  off  the  power  of  Congress  to  punish  treason, 
and  limits  it  to  such  forfeitures  as  are  the  consequence 
of  attainder,  and  then  cuts  off  from  attainder  its  penal 
consequences  of  corruption  of  blood  and  forfeiture  of 
property,  excepting  only  the  life  estate  of  the  offender, 
the  framers  of  that  instrument  have  effectually  pro 
tected  the  personal  and  real  estate  of  traitors,  and  have 
taken  more  care  to  secure  them  from  the  consequences 
of  their  crime  than  any  other  class  of  criminals.  If  so, 
they  have  authorized  far  more  severity  against  many 
other  felons  than  against  them.  If  such  wrere  the  pur 
pose  of  the  authors  of  the  constitution,  they  would 
have  taken  direct  and  plain  language  to  say  what  they 
meant.  They  would  have  said,  "  Congress  may  punish 
treason,  but  shall  not  deprive  traitors  of  real  or  personal 
property,  except  for  the  time  which  may  elapse  be 
tween  sentence  of  death  and  execution."  Instead 


PUNISHMENT    OF    TREASON.  Ill 

of  this,  they  gave  full  power  to  provide  for  the  punish 
ment  of  treason  by  fines,  forfeitures,  death,  and  attain 
der,  only  limiting  the  technical  effect  of  the  last-men 
tioned  penalty,  if  it  should  be  adopted.  Thus  Congress 
has  power,  under  the  constitution,  to  declare,  as  the 
penalty  for  treason,  a  forfeiture  of  the  entire  estate  of 
the  offender,  in  his  real  and  personal  property,  and  is 
not  limited,  as  has  been  supposed  by  some,  to  a  forfeit 
ure  of  real  estate  for  life  only. 


NOTE.  —  Since  the  publication  of  the  seventh  edition,  it  has  been  decided  by  Under 
wood,  J.,  in  the  Eastern  District  Court  of  the  United  States  for  Virginia,  in  the  case  of 
United  States  v.  Latham,  first,  that  the  Confiscation  Act  above  cited  is  authorized  by  the 
Constitution  ;  second,  that  by  the  terms  of  that  act  (dated  July  17,  1802,  chap.  195),  as 
modified  by  the  joint  resolution  of  July  27,  1862  (No.  63),  the  punishment  of  treason  is 
not  limited  to  forfeiture  of  the  life  estate  of  the  offender,  and  is  not  required  to  be  so 
limited  by  the  Constitution;  but  the  forfeiture  extends  to  the  entire  estate  in  fee  simple. 

Note  to  Forty-third  Edition.  —  Judge  Underwood's  construction  of  this  statute  has  not 
been  sustained  by  the  Supreme  Court;  but  its  constitutionality  is  now  conceded.  Since 
this  edition  was  in  press,  that  court  has  decided  in  Bigelow  v.  Forrest  (9  Wallace,  .'539), 
that  the  Confiscation  Act  of  July  17,  18G2,  in  connection  with  the  explanatory  resolution 
of  the  same  date,  is  to  be  so  construed  that  upon  a  decree  of  condemnation,  all  that  could 
be  sold  was  a  life  estate  of  the  criminal.  Appendix,  p.  610.  This  decision,  however, 
has  no  bearing  upon  the  question  of  the  constitutional  right  of  Congress  discussed  iu  this 
chapter.  See  Note,  p.  409;  also  Index,  "  Lincoln,  President." 


112  STATUTES  AGAINST  TREASON. 


CHAPTER     VI. 

STATUTES  AGAINST  TREASON.     WHAT  THEY  ARE,  AND   HOW 
THEY  ARE   TO   BE  ADMINISTERED. 

THE  United  States  statute  of  April  30th,  1790, 
provides  that, — 

"  If  any  person  or  persons,  owing  allegiance  to  the  United  States  of 
America,  shall  levy  war  against  them,  or  shall' adhere  to  their  enemies, 
giving  them  aid  and  comfort,  within  the  United  States  or  elsewhere, 
and  shall  be  thereof  convicted,  on  confession  in  open  court,  or  on  the 
testimony  of  two  witnesses  to  the  same  overt  act  of  the  treason  where 
of  he  or  they  shall  stand  indicted,  such  person  or  persons  shall  be 
adjudged  guilty  of  treason  against  the  United  States,  and  shall  suffer 
death." 

Concealment  of  knowledge  of  treason  (misprision  of 
treason)  is,  by  the  same  act,  punished  by  fine  not 
exceeding  one  thousand  dollars,  and  imprisonment  not 
exceeding  seven  years.  By  the  statute  of  January 
30th,  1799,  corresponding  with  foreign  governments, 
or  with  any  officer  or  agent  thereof,  with  intent  to  in 
fluence  their  controversies  with  the  United  States,  or  to 
defeat  the  measures  of  this  government,  is  declared  to 
be  a  high  misdemeanor,  though  not  called  treason,  and 
is  punishable  by  fine  not  exceeding  five  thousand  dol 
lars,  and  imprisonment  during  a  term  not  less  than  six 
months,  nor  exceeding  three  years.  So  the  law  has 
stood  during  this  century,  until  the  breaking  out  of 
the  present  rebellion. 

The  chief  provisions  of  the  law  passed  at  the  last 
session  of  Congress,  and  approved  July,  17th,  1862,  chap. 
195.  are  these:  — 

Section  1.  Persons  committing  treason  shall  suffer 
one  of  two  punishments :  1.  Either  death,  and  freedom 


J^_v,_ 

STATUTES  AGAINST  TREASON.  113 

to  his  slaves;  or,  2.  Imprisonment  not  less  than  five 
years,  fine  not  less  than  ten  thousand  dollars,  and  free 
dom  of  slaves ;  the  fine  to  be  collected  out  of  any 
personal  or  real  estate  except  slaves. 

Sect.  2.  Inciting  rebellion,  or  engaging  in  it,  or  aid 
ing  those  who  do  so,  is  punishable  by  imprisonment  not 
more  than  ten  years,  fine  not  more  than  ten  thousand- 
dollars,  and  liberation  of  slaves. 

Sect.  3  disqualifies  convicts,  under  the  preceding  sec 
tions,  from  holding  office  under  the  United  States. 

Sect.  4  provides  that  former  laws  against  treason 
shall  not  be  suspended  as  against  any  traitor,  unless  he 
shall  have  been  convicted  under  this  act. 

Sect.  5  makes  it  the  duty  of  the  President  to  cause 
the  seizure  of  all  the  property,  real  and  personal,  of  several 
classes  of  persons,  and  to  apply  the  same  to  the  support 
of  the  army,  namely  :  1.  Kebel  army  and  navy  offi 
cers  ;  2.  Government  officers  of  Confederate  States  in 
their  national  capacity  ;  3.  Confederate  State  officers ; 
4.  United  States  officers  turned  traitor  officers;  5.  Any 
one  holding  any  office  or  agency,  national,  state,  or 
municipal,  under  the  rebel  government,  provided  per 
sons  enumerated  in  classes  3,  4,  and  5  have  accepted 
office  since  secession  of  the  State,  or  have  taken  oath 
of  allegiance  to  support  the  Confederate  States  ;  6.  Per 
sons  who,  owning  property  in  loyal  States,  in  the  terri 
tories,  or  in  the  District  of  Columbia,  shall  hereafter 
assist,  aid,  or  comfort  siich  rebellion.  All  transfers  of 
property  so  owned  shall  be  null,  and  suits  for  it  by  such 
persons  shall  be  barred  by  proving  that  they  are  within 
the  terms  of  this  act. 

Sect.  6.  Any  persons  within  the  United  States,  not 
above  named,  who  are  engaged  in  armed  rebellion,  or 
15 


114  STATUTES    AGAINST    TREASON. 

aiding  and  abetting  it,  who  shall  not,  within  sixty  days 
after  proclamation  by  the  President,  "cease  to  aid, 
countenance,  and  abet  said  rebellion,"  shall  be  liable  to 
have  all  their  property,  personal  and  real,  seized  by  the 
President,  whose  duty  it  shall  be  to  seize  and  use  it,  or 
the  proceeds  thereof.  All  transfers  of  such  property, 
•made  more  than  sixty  days  after  the  proclamation,  are 
declared  null. 

Sect.  7.  To  secure  the  condemnation  and  sale  of 
seized  property,  so  as  to  make  it  available,  proceedings 
in  rem  shall  be  instituted  in  the  name  of  the  United 
States,  in  any  District  Court  thereof,  or  in  any  terri 
torial  court,  or  in  the  United  States  District  Court  for 
the  District  of  Columbia,  within  which  district  or  terri 
tory  the  property,  or  any  part  of  it,  may  be  found,  or 
into  which,  if  movable,  it  may  first  be  brought.  Pro 
ceedings  are  to  conform  to  those  in  admiralty  or  reve 
nue  cases.  Condemnation  shall  be  as  of  enemy's  prop 
erty,  and  it  shall  belong  to  the  United  States;  the 
proceeds  thereof  to  be  paid  into  the  treasury. 

Sect.  8.  Proper  powers  are  given  to  the  courts  to 
carry  the  above  proceedings  into  effect,  and  to  establish 
legal  forms  and  processes  and  modes  of  transferring 
condemned  property. 

Sect.  9.  Slaves  of  rebels,  or  of  those  aiding  them, 
escaping  and  taking  refuge  within  the  lines  of  our  army; 
slaves  captured  from  them ;  slaves  deserted  by  them, 
and  coming  under  the  control  of  the  United  States  gov 
ernment;  slaves  found  in  places  occupied  by  rebel  forces, 
and  afterwards  occupied  by  the  United  States  army,  shall 
be  deemed  captives  of  war,  and  shall  be  forever  free. 

Sect.  10.  No  fugitive  slave  shall  be  returned  to  a 
person  claiming  him,  nor  restrained  of  his  liberty,  except 
for  crime,  or  offence  against  law,  unless  the  claimant 


STATUTES    AGAINST    TREASON.  115 

swears  that  the  person  claiming  the  slave  is  his  lawful 
owner,  has  not  joined  the  rebellion,  nor  given  aid  to 
it.  No  officer  or  soldier  of  the  United  States  shall  sur 
render  fugitive  slaves. 

Sect.  11.  The  President  may  employ,  organize,  and 
use  as  many  persons  of  African  descent  as  he  pleases 
to  suppress  the  rebellion,  and  use  them  as  he  judges 
for  the  public  welfare. 

Sect.  12.  The  President  may  make  provisions  for 
colonizing  such  persons  as  may  choose  to  emigrate,  after 
they  shall  have  been  freed  by  this  act. 

Sect.  13.  The  President  is  authorized  by  proclama 
tion  to  pardon  any  persons  engaged  in  the  rebellion, 
on  such  terms  as  he  deems  expedient. 

Sect.  14.  Courts  of  the  United  States  have  full  pow 
ers  to  institute  proceedings,  make  orders,  &c.,  to  carry 
the  foregoing  measures  into  effect. 

The  joint  explanatory  resolution  of  the  17th  of  July, 
1862,  declares  that  this  statute  applies  to  no  act  done 
prior  to  its  passage,  and  to  no  judge  or  member  of  a 
State  legislature,  who  has  not  taken  the  oath  of  alle 
giance  to  support  the  constitution  of  the  Confederate 
States ;  and  that  no  punishment  or  proceedings  shall 
be  so  construed  as  to  "  work  forfeiture  of  the  real 
estate  of  the  offender  beyond  his  natural  life." 

The  President's  proclamation,  in  accordance  with  the 
above  act,  was  issued  July  25th,  1862.  Thus  all  per 
sons  engaged  in  the  rebellion,  who  come  within  the 
provisions  of  the  sixth  section,  will  be  liable  to  the 
penalties  after  sixty  days  from  July  25th.  This  is  one 
of  the  most  important  penal  acts  ever  passed  by  the 
Congress  of  the  United  States.* 

*  Note  to  Forty-third  Edition.  —  For  the  laws  of  the  Confederate  Congress  which  pro 
vide  for  confiscation  of  estates  in  fee,  see  Note  on  "  Confiscation,"  p.  409. 


116          STATUTES  AGAINST  TREASON. 

THE   CONFISCATION  ACT  OF  1862  IS    NOT  A  BILL  OF  ATTAINDER.   NOR 
AN  EX  POST   FACTO   LAW. 

This  act  is  not  a  bill  of  attainder,  because  it  does  not 
punish  the  offender  in  any  instance  with  corruption  of 
blood,  and  it  does  not  declare  him,  ~by  act  of  legislature. 
guilty  of  treason,  inasmuch  as  the  offender's  guilt  must 
be  duly  proved  and  established  by  judicial  proceedings 
before  he  can  be  sentenced.  It  is  not  an  ex  post  facto  law, 
as  it  declares  no  act  committed  prior  to  the  time  when 
the  law  goes  into  operation  to  be  a  crime,  or  to  be  punish 
able  as  such.  It  provides  for  no  attainder  of  treason,  and 
therefore  for  none  of  the  penal  consequences  which 
might  otherwise  have  followed  from  such  attainder.* 

The  resolution,  which  is  to  be  taken  as  part  of  the 
act,  or  as  explanatory  of  it,  expressly  provides  that  no 
punishment  or  proceedings  under  said  act  shall  be  so 
construed  as  to  work  a  forfeiture  of  the  real  estate  of 
the  offender  beyond  his  natural  life.  Thus,  to  prevent 
our  courts  from  construing  the  sentence  of  death,  under 
Sect.  1,  as  involving  an  attainder  of  treason,  and.  its 
consequences,  Congress  has,  in  express  terms,  provided 
that  no  punishment  or  proceeding  shall  be  so  construed 
as  to  wrork  forfeiture,  as  above  stated.  Thus  this  statute 
limits  the  constructive  penalties  which  result  from  for 
feitures  worked  by  attainders,  and  perhaps  may  be  so 
construed  as  to  confine  the  punishments  to  those,  and 
those  only,  which  are  prescribed  in  the  plain  terms  of 
the  statute.  And  this  limitation  is  in  accordance 
with  the  constitution,  as  understood  by  the  President, 
although  the  forfeiture  of  rebels'  real  estate  might  have 
been  made  absolute  and  unlimited,  without  exceeding 
the  constitutional  power  of  Congress  to  punish  treason.f 

*  So  decided  by  the  Supreme  Court  in  1870,  in  Bigelow  v.  Forrest.    Appendix,  p.  010. 
t  Note  to  Forty-third  Edition.  —  The  views  of  President  Lincoln  on  this  question  were 
subsequently  changed.    See  Note  on  "  Conliscatiou,"  pp.  400-400.    Also,  note  to  p.  111. 


THE   POWER    TO    PUNISH    REBELS.  H7 


CHAPTER    VII. 

THE  RIGHT  OF  CONGRESS  TO  DECLARE  THE  PUNISHMENT 
OF  CRIMES  AGAINST  THE  UNITED  STATES  OTHER  THAN 
TREASON.* 

THE    NEW    CRIMES  OF  REBELLION  REQUIRE   NEW    PENAL  LAWS. 

SEVERAL  crimes  may  be  committed  not  defined  as 
treason  in  the  constitution,  but  not  less  dangerous  to 
the  public  welfare.  The  prevention  or  punishment  of 
such  offences  is  essential  to  the  safety  of  every  form 
of  government;  and  the  power  of  Congress  to  impose 
penalties  in  such  cases  cannot  be  reasonably  questioned. 
The  rights  guaranteed  in  express  terms  to  private  citi 
zens  cannot  be  maintained,  nor  be  made  secure,  without 
such  penal  legislation ;  and,  accordingly,  Congress  has, 
from  time  to  time,  passed  laws  for  this  purpose.  The 
present  rebellion  has  given  birth  to  a  host  of  crimes 
which  were  not  previously  punishable  by  any  law. 
Among  these  crimes  are  the  following  :  Accepting  or 
holding  civil  offices  under  the  Confederate  government ; 
"violating  the  oath  of  allegiance  to  the  United  States ; 
taking  an  oath  of  allegiance  to  the  Confederate  States ; 
manufacturing,  passing,  or  circulating  a  new  and  illegal 
currency ;  acknowledging  and  obeying  the  authority 
of  a  seceded  State,  or  of  the  Confederate  States ;  neg 
lecting  or  refusing  to  return  to  allegiance  and  to  lay 
down  arms  after  due  warning  ;  attempting  to  negotiate 
treaties  with  foreign  powers  to  intervene  in  our  affairs ; 

*  Note  to  Forty-third  Edition.  —  Most  of  the  crimes  enumerated  in  this  chapter  have 
become,  since  this  essay  was  published,  the  subject  of  penal  statutes. 


118  THE    POWER    TO    PUNISH    REBELS. 

granting  or  taking  letters  of  marque ;  conspiracy 
against  the  lawful  government;  holding  public  meet 
ings  to  incite  the  people  to  the  commission  of  treason ; 
plotting  treason ;  framing  and  passing  ordinances  of 
secession;  organizing  and  forming  new  governments 
within  any  of  the  States,  with  the  intent  that  they 
shall  become  independent  of  the  United  States,  and 
hostile  thereto :  the  making  of  treaties  between  the 
several  States;  refusal  to  take  the  oath  of  allegiance 
to  the  United  States,  when  tendered  by  proper  author 
ity  ;  resistance  to  civil  process,  or  to  civil  officers  of  the 
United  States,  when  such  resistance  is  not  so  general 
as  to  constitute  war.  Each  of  these  and  many  other 
public  wrongs  may  be  so  committed  as  to  avoid  the 
penalty  of  treason,  because  they  may  not  be  overt  acts 
of  levying  war,  or  of  aiding  and  comforting  the  enemy, 
which  the  offender  must  have  committed  before  he  can 
have  rendered  himself  liable  to  be  punished  for  treason 
as  defined  in  the  constitution.  These  and  other  similar 
offences  are  perpetrated  for  the  purpose  of  overthrow 
ing  government.  Civil  war  must  inevitably  result  from 
them.  They  might  be  deemed  less  heinous  than  open 
rebellion,  if  it  were  not  certain  that  they  are  the  foun 
tain  from  which  the  streams  of  treason  and  civil  war 
must  flow,  sweeping  the  innocent  and  the  guilty  with 
resistless  tide  onward  to  inevitable  destruction. 

ALL  ATTEMPTS  TO  OVERTURN  GOVERNMENT  SHOULD  BE  PUNISHED. 

Of  the  many  atrocious  misdeeds  which  are  pre 
liminary  to  or  contemporaneous  with  treason,  each  and 
all  may  be  and  should  be  punishable  by  law.  It  is  by 
no  means  desirable  that  the  punishment  of  all  of  them 
should  be  by  death,  but  rather  by  that  penalty,  which, 


•      THE   POWER   TO    PUNISH   REBELS.  119 

depriving  the  criminal  of  the  means  of  doing  harm, 
will  disgrace  him  in  the  community  he  has  dishonored. 
Imprisonment,  fines,  forfeitures,  confiscation,  are  the 
proper  punishments  for  such  hardened  criminals,  be 
cause  imprisonment  is  a  personal  punishment,  and 
fines,  forfeitures,  &c.,  merely  transfer  the  property  of 
the  offender  to  the  public,  as  a  partial  indemnity  for 
the  wrong  he  has  committed. 

When  the  terrible  consequences  of  the  crimes  which 
foment  civil  war  are  considered,  no  penalty  would  seem 
too  severe  to  expiate  them.  But  it  has  been  erro 
neously  suggested  that,  as  the  levying  of  war  —  treason 
— itself  is  not  punishable  by  depriving  traitors  of  more 
than  a  life  estate  in  their  real  estate,  even  though  they 
are  condemned  to  death,  it  could  not  have  been  the 
intention  of  the  framers  of  the  constitution  to  punish 
any  of  the  crimes  which  may  originate  a  civil  war,  by 
penalty  equally  severe  with  that  to  which  they  limited 
Congress,  in  punishing  treason  itself.  A  lower  offence, 
it  is  said,  should  not  be  punished  with  more  severity 
than  a  higher  one.  This  objection  would  be  more 
plausible  if  the  power  to  punish  treason  were  in  fact 
limited.  But,  as  has  been  shown  in  a  previous  chapter, 
such  is  not  the  fact.* 

ACT    OF  1862,  SECTION  VI.,  DOES    NOT  PURPORT    TO    PUNISH   TREASON. 

If  the  penalty  of  death  be  not  inflicted  on  the  guilty, 
and  if  he  be  not  accused  of  treason,  no  question  as  to 
the  validity  of  the  statute  could  arise  under  this  clause 
of  the  constitution  limiting  the  effect  of  attainders 
of  treason.  No  objection  could  be  urged  against  its 

*  Seo  Chap.  V.  p.  93. 


120  THE  POWER    TO    PUNISH   REBELS.      * 

validity  on  the  ground  of  its  forfeiting  or  confiscating 
all  the  property  of  the  offender,  or  of  its  depriving 
him  of  liberty  by  imprisonment,  or  of  its  exiling  him 
from  the  country. 

Section  6  of  the  act  of  1862  does  not  impose  the 
penalty  of  death,  but  it  provides  that  if  rebels  in  arms 
shall  not,  within  sixty  days  after  proclamation  by  the 
President,  cease  to  aid  and  abet  the  rebellion,  and 
return  to  their  allegiance,  they  shall  be  liable  to  have 
all  their  property  seized  and  used  for  the  benefit  of  the 
country. 

Suppose  the  rebels  in  arms  refuse  to  obey  the  procla 
mation,  and  neglect  or  refuse  to  return  to  their  allegiance; 
the  mere  non-performance  of  the  requisition  of  this  act 
is,  not  levying  war,  or  aiding  and  comforting  the  enemy, 
technically  considered,  and  so  not  treason  —  although, 
if  they  go  on  to  perform  overt  acts  in  aid  of  the  rebels, 
those  acts  will  be  treasonable.  Will  it  be  denied  that  the 
rebels  in  arms  ought  to  be  required  by  law  to  return 
to  their  allegiance  and  cease  rebellion?  If  their 
refusal  to  do  so  is  not  technically  treason,  ought  they 
not  to  be  liable  to  punishment  for  violating  the  law  ? 
Is  any  degree  of  pecuniary  loss  too  severe  for  those 
who  will  continue  at  war  with  their  country  after  warn 
ing  and  proclamation,  if  their  lives  are  not  forfeited  ? 

LEGAL    CONSTRUCTION   OF  THE  ACT  OF   1862. 

What  will  be  the  construction  put  upon  section  6th 
of  the  Act  of  July  17,  ch.  195,  1862,  when  taken  in 
connection  with  the  joint  resolution  which  accompanied 
it,  is  not  so  certain  as  it  should  be.  The  language  of 
the  last  clause  in  that  resolution  is,  "  Nor  shall  any  pun 
ishment  or  proceedings,  under  said  Act,  be  so  construed 


THE    POWER    TO    PUNISH   REBELS.  121 

as  to  work  a  '  forfeiture '  of  the  real  estate  of  the  offend 
er  beyond  his  natural  life."  There  is  no  forfeiture  in 
express  terms  provided  for  in  any  part  of  the  Act, 
The  punishment  of  treason,  in  the  first  section,  is  either 
death  and  freedom  of  slaves,  or  imprisonment,  fine,  and 
freedom  of  slaves.  The  judgment  of  death  for  treason 
is  the  only  one  which  could,  even  by  the  common  law, 
have 'been  so  construed  as  to  "work  any  forfeiture." 
It  may  have  been  the  intention  of  Congress  to  limit 
the  constructive  effect  of  such  a  judgment.  But  the 
words  of  the  resolution  are  peculiar ;  they  declare  that 
no  u  proceedings  "  under  said  act  shall  be  so  construed 
as  to  work  a  forfeiture,  &c.  Then  the  question  will  arise 
whether  the  "  proceedings  "  (authorized  by  section  6,  in 
which  the  President  has  the  power  and  duty  to  seize 
and  use  all  the  property  of  rebels  in  arms  who  refuse, 
after  warning,  to  return  to  their  allegiance)  are  such 
that  a  sale  of  such  real  estate,  under  the  provisions  of 
sections  7  and  8,  can  convey  any  thing  more  than  an 
estate  for  the  life  of  the  offender  ?  But  the  crime  pun 
ished  by  section  6  is  not  the  crime  of  treason;  and 
whether  there  be  or  be  not  a  limitation  to  the  power 
of  the  legislature  to  punish  that  crime,  there  is  no  limit 
to  its  power  to  punish  the  crime  described  in  this 
section.* 

Forfeiture  and  confiscation  of  real  and  personal 
estates  for  crimes,  when  there  was  and  could  have  been 
no  treason,  were  common  and  familiar  penal  statutes  in 
several  States  or  colonies  when  the  constitution  was 
framed.  Many  of  the  old  tories,  in  the  time  of  the 
revolution,  were  banished,  and  their  real  estate  confis 
cated,  without  having  been  tried  for  or  accused  of 

*  See  Note,  p.  Ill,  United  States  v.  Latham. 

16 


122  THE    POWER    TO    PUNISH    REBELS. 

treason,  or  having  incurred  any  forfeiture  by  the  laws 
against  treason.  Such  was  the  case  in  South  Carolina 
in  1776.*  In  that  State,  one  set  of  laws  was  in  force 
against  treason,  the  punishment  of  which  was  forfeiture 
ivorJced  by  attainder.  Another  set  of  lawTs  were  confisca 
tion  acts  against  tory  refugees  who  had  committed  no 
treason.  These  distinctions  were  familiar  to  those  who 
formed  the  constitution,  and  they  used  language  re 
lating  to  these  subjects  with  technical  precision. 

THE  SEVERITY  OF  DIFFERENT  PUNISHMENTS   COMPARED. 

Forfeiture  and  confiscation  are,  in  the  eye  of  the  law, 
less  severe  punishments  than  death :  they  are  in  effect 
fines,  to  the  extent  to  which  the  criminal  is  capable  of 
paying  them.  It  would  not  seem  to  be  too  severe  a 
punishment  upon  a  person  who  seeks,  with  arms  in  his 
hands,  to  destroy  your  life,  to  steal  or  carry  away  your 
property,  to  subvert  your  government,  that  he  should 
be  deprived  of  his  property  by  confiscation  or  fine  to 
any  amount  he  could  pay.  Therefore,  as  the  provisions 
of  section  6,  which  would  authorize  the  seizure  and 
appropriation  of  rebel  real  estate  to  public  use,  are  not 
within  the  prohibitions  of  Art.  III.  Sect.  3  of  the  con 
stitution,  it  is  much  to  be  regretted  that  the  joint  reso 
lution  of  Congress  should  have  been  so  worded  as  to 
throw  a  doubt  upon  the  construction  of  that  part  of 
the  statute,  if  not  to  paralyze  its  effect  upon  the  only 
class  of  rebel  property  which  they  cannot  put  out  of 
the  reach  of  government,  viz.,  their  real  estate.f 

*  See  Willis  v.  Martin,  2  Bay  20.    See  also  Hinzleman  v.  Clarke  and  AL,  Coxe  N.  J.,  1795. 
f  See  Note  to  Forty-third  Edition,  on  "  Confiscation,"  p.  406. 

In  Eigelow  v.  Forrest  (9  "Wallace,  339)  the  Supreme  Court  has  decided  this  point.     See 
Appendix,  p.  610. 


THE   POWER   TO    PUNISH   REBELS.  123 

THE  SIXTH  SECTION  OF  THE  CONFISCATION  ACT  OF  1862  IS  NOT 
WITHIN  THE  PROHIBITION  OF  THE  CONSTITUTION,  ARTICLE  in. 
SECTION  in.* 

Congress  cannot,  by  giving  a  new  name  to  acts  of 
treason,  transcend  the  constitutional  limits  in  declaring 
its  punishment.  Nor  can  legislation  change  the  true 
character  of  crimes.  Hence  some  have  supposed  that 
Congress  has  no  right  to  punish  the  most  flagrant  and 
outrageous  acts  of  civil  war  by  penalties  more  severe 
than  those  prescribed,  as  they  say,  for  treason.  Since  a 
subject  must  have  performed  some  overt  act,  which  may 
be  construed  by  courts  into  the  "  levying  of  war,"  or  "  aid 
ing  the  enemy,"  before  he  can  be  convicted  of  treason, 
it  has  been  supposed  that  to  involve  a  great  nation  in 
the  horrors  of  civil  war  can  be  nothing  more,  and  noth 
ing  else,  than  treason.  This  is  a  mistake.  The  consti 
tution  does  not  define  the  meaning  of  the  phrase 
"  levying  war."  Is  it  confined  to  the  true,  and  genuine 
signification  of  the  words,  namely, "  that  to  levy  war  is 
to  raise  or  begin  war  ;  to  take  arms  for  attack  ; "  or  must 
it  be  extended  to  include  the  carrying  on  or  waging 
war,  after  it  has  been  commenced  ?  f  The  crime  com 
mitted  by  a  few  individuals  by  merely  levying  war,  or 
beginning  without  prosecuting  or  continuing  armed 
resistance  to  government,  although  it  is  treason,  may  be 
immeasurably  less  than  that  of  carrying  on  a  colossal 
rebellion,  involving  millions  in  a  fratricidal  contest. 
Though  treason  is  the  highest  political  crime  known  to 
the  codes  of  law,  yet  wide-spread  and  savage  rebellion 

*  See  Notes  to  Forty-third  Edition,  p.  425. 

f  To  levy  war  is  to  raise  or  begin  war  ;  to  take  arms  for  attack  ;  to  attack.  —  Webster's 
Quarto  Diet. 

To  levy  is,  1.  To  raise,  as  a  siege.  2.  To  raise  or  collect;  to  gather.  3.  To  raise,  ap 
plied  to  war.  —  Worcester's  Quarto  Diet. 


124  THE   POWER    TO    PUNISH   REBELS. 

is  a  still  higher  crime  against  society  ;  for  it  embraces 
a  cluster  of  atrocious  wrongs,  of  which  the  attack  upon 
government  —  treason  —  is  but  one.  Although  there 
can  be  no  treason  unless  the  culprit  levies  war,  or  aids 
the  enemy,  yet  it  by  no  means  follows  that  all  acts  of 
carrying  on  a  war  once  levied  are  only  acts  of  treason. 
Treason  is  the  threshold  of  war ;  the  traitor  passes  over 
it  to  new  and  deeper  guilt.  He  ought  to  suffer  punish 
ment  proportioned  to  his  crimes. 

It  must  also  be  remembered,  that  the  constitution 
does  not  indicate  that  fines,  forfeitures,  confiscations, 
outlawry,  or  imprisonment  are  "  severer  penalties  than 
death."  The  law  has  never  so  treated  them.  Nor  is 
there  any  limit  to  the  power  of  Congress  to  punish 
traitors,  as  has  been  shown  in  a  previous  chapter.* 
Who  will  contend  that  the  crime  of  treason  is  in  morals 
more  wicked,  in  its  tendencies  more  dangerous,  or  in 
its  results  more  deadly  than  the  conspiracy  by  which  it 
was  plotted  and  originated  ?  Yet  suppose  the  con 
spirator  is  artful  enough  not  to  commit  any  overt  act 
in  presence  of  two  witnesses ;  he  cannot  be  convicted 
of  treason,  though  he  may  have  been  far  more  guilty 
than  many  thoughtless  persons  who  have  been  put 
forward  to  execute  the  "  overt  acts,"  and  have  thereby 
become  punishable  as  traitors.  Suppose  a  person  to  com 
mit  homicide  ;  he  may  be  accused  of  assault  and  battery, 
or  assault  with  intent  to  kill,  or  justifiable  homicide, 
or  manslaughter,  or  murder  in  either  degree.  Suppose 
the  constitution  limited  the  punishment  of  wilful  mur 
der  to  the  death  of  the  criminal  and  forfeiture  of  his  real 
and  personal  estate  for  life ;  would  any  person  contend 
that  neither  of  the  other  above-mentioned  crimes  could 

*  See  Chap.  V.  p.  93. 


THE   POWER    TO    PUNISH    EEBELS.  125 

be  punished,  unless  the  criminal  were  convicted  of  wil 
ful  murder?  If  he  had  committed  murder,  he  must 
have  committed  all  the  crimes  involved  in  murder. 
He  must  have  made  an  assault  with  intent  to  kill; 
and  he  must  have  committed  unjustifiable  homicide,  or 
manslaughter.  If  the  government  should,  out  of  leni 
ency,  prosecute  and  convict  him  of  manslaughter,  and 
impose  upon  him  a  penalty  of  fine,  or  confiscation  of 
his  real  and  personal  estate,  instead  of  sentence  of 
death,  would  any  one  say  that  the  penalty  imposed  was 
severer  than  death  ?  or  that  murder  was  legislated  into 
any  other  crime  ?  or  that  any  other  crime  was  legis 
lated  into  murder  ?  Many  crimes  of  different  grades 
may  coexist,  and  culminate  in  one  offence.  It  is  no 
sign  of  undue  severity  to  prosecute  the  offender  for  one 
less  than  the  highest.  The  same  course  of  crime  may 
violate  many  of  the  duties  the  loyal  citizen  owes  to  his 
country.  To  pass  laws  declaring  the  penalty  for  each 
and  all  of  these  crimes  does  not  transcend  the  true 
scope  of  the  criminal  legislation  of  Congress,  where  an 
offender  has  brought  upon  his  country  the  horrors  of 
civil  war  by  destroying  the  lives  of  those  who  have 
given  him  no  cause  of  offence,  by  violating  the  rights 
of  the  living  and  the  dead,  by  heaping  upon  his  guilty 
act  the  criminality  of  a  thousand  assassins  and  mur 
derers,  and  by  striking  at  the  root  of  the  peace  and 
happiness  of  a  great  nation ;  it  does  not  seem  unduly 
severe  to  take  from  him  his  property  and  his  life.  The 
constitution  does  not  protect  him  from  the  penalty  of 
death ;  and  it  cannot  be  so  interpreted  as  to  protect 
him  against  confiscation  of  his  real  estate. 


126          THE  POWER  TO  PUNISH  REBELS. 

TREASON    AND    CONFISCATION    LAWS    IN    1862.      THEIR    PRACTICAL 
OPERATION. 

To  understand  the  practical  operation  of  the  statutes 
now  in  force  for  the  punishment  of  treason  and  rebel 
lion,  and  for  the  seizure  and  confiscation  of  rebel  prop 
erty,  it  is  necessary  to  observe  the  effect  of  other 
statutes  which  regulate  the  modes  of  procedure  in  the 
United  States  courts.  Section  1  of  the  act  of  1862, 
which,  as  well  as  the  act  of  1790,  prescribes  the  pun 
ishment  of  death  for  treason ;  section  2,  which  imposes 
fines  and  penalties ;  section  3,  which  adds  disqualifica 
tion  for  office ;  and,  in  fact,  all  the  penal  sections  of 
this  statute,  —  entitle  the  accused  to  a  judicial  trial. 
Before  he  can  be  made  liable  to  suffer  any  penalty,  he 
must  have  been  "pronounced  guilty  of  the  offence 
charged,"  and  he  must  have  suffered  "judgment  and 
sentence  on  conviction."  The  accused  cannot  by  law 
be  subjected  to  a  trial  unless  he  has  previously  been 
indicted  by  a  grand  jury.  He  cannot  be  adjudged 
guilty  unless  upon  a  verdict  of  a  petit  jury,  impanelled 
according  to  law,  and  by  courts  having  jurisdiction  of 
the  person  and  of  the  alleged  offence.  A  brief  exami 
nation  of  the  statutes  regulating  such  proceedings  will 
show  that  treason  and  confiscation  laws  will  not  be 
likely  to  prove  effectual,  unless  they  shall  be  amended, 
or  unless  other  statutes  shall  be  so  modified  as  to  adapt 
them  to  the  present  condition  of  the  country.* 

LEGAL  RIGHTS    OF    PERSONS    ACCUSED    OF  TREASON. 

All  judicial  convictions  must  be  in  accordance  with 
the  laws  establishing  the  judiciary  and  regulating  its 
proceedings.  Whenever  a  person  accused  of  crime  is 
held  by  the  government,  not  as  a  belligerent  or  prisoner 

*  See  notes  to  p.  130. 


THE   POWER    TO    PUNISH   REBELS.  127 

of  war,  but  merely  as  a  citizen  of  the  United  States, 
then  he  is  amenable  to,  and  must  be  tried  under  and 
by  virtue  of,  standing  laws  ;  and  all  rights  guaranteed  to 
other  citizens  in  his  condition  must  be  conceded  to  him. 

WILL  SECESSIONISTS  INDICT  AND  CONVICT   EACH  OTHER? 

No  person  can  lawfully  be  compelled  to  appear  and 
answer  to  a  charge  for  committing  capital  or  other 
wise  infamous  crimes,  except  those  arising  in  the  army 
and  navy,  when  in  actual  service,  in  time  of  war  or 
public  danger,  until  he  has  been  indicted  by  a  grand 
jury.*  That  grand  jury  is  summoned  by  the  marshal 
from  persons  in  the  district  where  the  crime  was  com 
mitted. 

By  the  statute  of  September  24,  1789,  section  29, 
"  in  all  cases  punishable  with  death,  the  trial  shall  be 
had  in  the  county  where  the  offence  was  committed ; 
or  where  that  cannot  be  done  without  great  inconve 
nience,  twelve  petit  jurors  at  least  shall  be  summoned 
from  thence."  It  has  indeed  been  decided  that  the 
judges  are  not  obliged  to  try  these  cases  in  the  county 
where  the  crime  was  committed,  but  they  are  bound 
to  try  them  within  the  district  in  which  they  were 
perpetrated,  f 

HOW  THE  JURIES   ARE  SELECTED,  AND  THEIR  POWERS. 

The  juries  are  to  be  designated  by  lot,  or  according 
to  the  mode  of  forming  juries  practised  in  1789,  so  far 
as  practicable :  the  qualifications  of  jurors  must  be  the 
same  as  those  required  by  the  laws  of  the  State  where 

*  Constitutional  Amendment  V. 

t  United  States  v.  Wilson,  Baldw.  117;   United  States  v.  Cornell,  2  Mass.  95-98;  United 
States  v.  The  Insurgents,  3  Dall.  518. 


128          THE  POWER  TO  PUNISH  REBELS. 

the  trial  is  held,  in  order  to  qualify  them  to  serve  in 
the  highest  court  of  that  State ;  and  jurors  shall  be 
returned  from  such  parts  of  the  district,  from  time  to 
time,  as  the  court  shall  direct,  so  as  to  be  most  favor 
able  to  an  impartial  trial.  And  if  so  many  jurors  are 
challenged  as  to  prevent  the  formation  of  a  full  jury, 
for  want  of  numbers,  the  panel  shall  be  completed  from 
the  bystanders. 

STATE   EIGHTS   AND   SECESSION  DOCTRINES  IN   THE   JURY  ROOM. 

Juries,  in  criminal  trials,  are  judges  of  the  law  and 
of  the  facts,  according  to  the  opinion  of  eminent 
legal  authorities.  Whether  this  be  so  or  not,  their 
verdicts,  in  such  cases,  are  rendered  in  accordance 
with  their  views  of  the  law,  whether  right  or  wrong 
Suppose  that  the  judge  presiding  at  the  trial  is  honest 
and  loyal,  and  that  the  jury  is  composed  of  men  who 
believe  that  loyalty  to  the  State  is  paramount  to  loy 
alty  to  the  United  States  ;  or  that  the  States  had,  and 
have,  a  lawful  right  to  secede  from  the  Union.  What 
ever  the  opinions  of  the  judge  presiding  in  the  United 
States  court  might  be  on  these  question's,  he  would  have 
no  power  to  root  out  from  the  jury  their  honest  belief, 
that  obedience  to  the  laws  of  their  own  seceding  State 
is  not,  and  cannot  be,  treason.  The  first  step  towards 
securing  a  verdict  would  be  to  destroy  the  belief  of 
the  jury  in  these  doctrines  of  State  rights,  paramount 
State  sovereignty,  and  the  right  of  secession.  To  de 
cide  the  issue,  according  to  the  conscientious  judgment 
of  the  jurymen  upon  the  facts  and  the  law,  would  re 
quire  them  to  find  a  verdict  against  the  United  States. 


THE    POWER    TO    PUNISH   REBELS.  129 

SYMPATHY. 

But  this  is  not  the  only  difficulty  in  the  operation 
of  this  statute.  The  grand  jurors  and  the  petit  jury 
are  to  be  drawn  from  those  who  are  neighbors,  and 
possibly  friends,  of  the  traitors.  The  accused  has  the 
further  advantage  of  knowing,  before  the  time  of  trial, 
the  names  of  all  the  jurors,  and  of  all  the  witnesses  to  be 
produced  against  him ;  he  has  the  benefit  of  counsel,  and 
the  process  of  the  United  States  to  compel  the  attend 
ance  of  witnesses  in  his  behalf*  How  improbable  is  it 
that  any  jury  of  twelve  men  will  be  found  to  take  away 
the  lives  or  estates  of  their  associates,  when  some  of  the 
jurymen  themselves,  or  their  friends  and  relatives  or 
debtors,  are  involved  in  the  same  offence !  Could  any 
judge  reasonably  expect  a  jury  of  horse  thieves  to  con 
vict  one  of  their  own  number,  when  either  of  the  jury 
men  might  be  the  next  man  required  to  take  his  turn 
in  the  criminal  box  ?  Under  the  present  state  of  the 
law,  it  is  not  probable  that  there  will  ever  be  a  convic 
tion,  even  if  laws  against  treason,  and  those  which  con 
fiscate  property,  were  not  unpopular  and  odious  in  a 
community  against  whom  they  are  enacted.  When  an 
association  of  traitors  and  conspirators  can  be  found  to 
convict  each  other,  then  these  statutes  will  punish  trea 
son,  but  not  sooner. f 

LAWS    ARE    MOST   EFFECTIVE    WHICH    REQUIRE     NO    REBEL  TO    AD 
MINISTER    THEM. 

Those  sections  of  the  act  of  1862,  empowering  gov 
ernment  to  seize  rebel  property,  real,  personal,  and 
mixed,  and  to  apply  it  to  the  use  of  the  army,  to  secure 
the  condemnation  and  sale  of  seized  property,  so  as  to 
make  it  available,  and  to  authorize  proceedings  in  rent, 

*  Statute  of  April  30,  1790,  Sect.  29. 

Note  to  Forty  third  Edition.  —  Not  one  life  has  yet  (1870)  been  forfeited  by  any  judicial 
proceeding  under  the  laws  of  the  United  States  against  treason  committed  during  the  late 
rebellion,  which  terminated  in  1805. 


130  THE    POWER    TO    PUNISH    REBELS. 

conformably  to  proceedings  in  admiralty  or  revenue 
cases,  are  of  a  different  and  far  more  effective  char 
acter.  Those  clauses  in  the  act  which  allow  of  the 
employment  in  the  service  of  the  United  States  of 
colored  persons,  so  far  as  they  may  be  serviceable,  and 
the  freeing  of  the  slaves  of  rebels,  whether  captured, 
seized,  fugitive,  abandoned,  or  found  within  the  lines 
of  the  army,  may  be  of  practical  efficacy,  because  these 
measures  do  not  require  the  aid  of  any  secession  jury 
to  carry  them  into  effect.* 

STATUTES  OF  LIMITATION   WILL  PROTECT  TRAITORS. 

The  statutes  limiting  the  time  during  which  rebels 
and  traitors  shall  be  liable  to  indictment  ought  also  to  be 
considered.  By  the  act  of  1790,  no  person  can  be  pun 
ished  unless  indicted  for  treason  within  three  years  after 
the  treason  was  committed,  if  punishable  capitally  ;  nor 
unless  indicted  within  two  years  from  the  time  of  com 
mitting  any  offence  punishable  with  fine  or  forfeiture. 
Thus,  by  the  provisions  of  these  laws,  if  the  war  should 
last  two  years,  or  if  it  should  require  two  or  three  years 
after  the  war  shall  have  been  ended  to  reestablish  reg 
ular  proceedings  in  courts,  all  the  criminals  in  the  se 
ceded  States  will  escape  by  the  operation  of  the  stat 
utes  of  limitations.  It  is  true,  that  if  traitors  flee  from 
justice  these  limitations  will  not  protect  them ;  but  this 
exception  will  apply  to  few  individuals,  and  those  who 
flee  will  not  be  likely  to  be  caught.  Unless  these  stat 
utes  are  modified,  those  who  have  caused  and  main 
tained  the  rebellion  will  escape  from  punishment.')' 

*  See  Note  to  the  Forty-third  Edition  :  "  The  United  States  may  call  on  all  its  Subjects 
to  do  Military  Duty."  pp.  478-493. 

•  f  Note  to  Tenth  Edition.  —  Several  bills  were  introduced  during  the  session  of  Con 
gress  (1863-04)  to  remedy  the  difficulties  here  pointed  out. 


SLAVERY.  131 


CHAPTER    VIII. 

INTERFERENCE    OF     GOVERNMENT    WITH     THE     DOMESTIC 
AFFAIRS    OF   THE    STATES. 

PARTY    PLATFORMS  CANNOT  ALTER  THE   CONSTITUTION.* 

POLITICAL  parties,  in  times  of  peace,  have  often  de 
clared  that  they  do  not  intend  to  interfere  with  slavery 
in  the  States.  President  Buchanan  denied  that  govern 
ment  had  any  power  to  coerce  the  seceded  States  into 
submission  to  the  laws  of  the  country.  When  Presi 
dent  Lincoln  called  into  service  the  army  and  navy, 
he  announced  that  it  was  not  his  purpose  to  interfere 
with  the  rights  of  loyal  citizens,  nor  with  their  domes 
tic  affairs.  Those  who  have  involved  this  country  in 
bloody  war,  all  sympathizers  in  their  treason,  and  others 
who  oppose  the  present  administration,  unite  in  deny 
ing  the  right  of  the  President .  or  of  Congress  to  inter 
fere  with  slavery,  even  if  such  interference  is  the  only 
means  by  which  the  Union  can  be  saved  from  destruc 
tion.  No  constitutional  power  can  be  obliterated  by 
any  denial  or  abandonment  thereof,  by  individuals,  by 
political  parties,  or  by  Congress. 

The  war  power  of  the  President  to  emancipate  ene 
my's  slaves  has  been  the  subject  of  a  preceding  chapter. 
Congress  has  power  to  pass  laws  necessary  and  proper 
to  provide  for  the  defence  of  the  country  in  time  of  war, 
by  appropriating  private  property  to  public  use,  with 
just  compensation  therefor,  as  shown  in  Chapter  L; 
also  laws  enforcing  emancipation,  confiscation,  and  all 
other  belligerent  rights,  as  shown  in  Chapter  II.  •  and 

*  Note  to  Forty-third  Edition.  —  See  the  political  platforms  of  the  Republican  and  of  the 
Democratic  parties  during  the  contest  for  the  presidency  between  Mr.  Lincoln  and  Mr. 
Douglas.  Also,  the  Resolutions  of  Congress  referred  to  in  note  to  page  133.  Also,  the 
Note  on  "  Slavery,"  pp.  393-400. 


132  SLAVERY. 

it  is  the  sole  judge  as  to  what  legislation,  to  effect 
these  objects,  the  public  welfare  and  defence  require  ; 
it  may  enact  laws  abolishing  slavery,  whenever  slavery, 
ceasing  to  be  merely  a  private  and  domestic  relation, 
becomes  a  matter  of  national  concern,  and  the  public 
welfare  and  defence  cannot  be  provided  for  and  secured 
without  interfering  with  slaves.  Laws  passed  for  that 
purpose,  in  good  faith,  against  belligerent  subjects,  not 
being  within  any  express  prohibition  of  the  constitu 
tion,  cannot  lawfully  be  declared  void  by  any  depart 
ment  of  government.  Reasons  and  authority  for  these 
propositions  have  been  stated  in  previous  chapters. 

DOMESTIC    INSTITUTIONS. 

Among  the  errors  relating  to  slavery  which  have 
found  their  way  into  the  public  mind,  —  errors  traceable 
directly  to  a  class  of  politicians  who  are  now  in  open 
rebellion,  —  the  most  important  is,  that  Congress  has  no 
right  to  interfere  in  any  way  ivith  slavery.  Their  assump 
tion  is,  that  the  States  in  which  slaves  are  held  are 
alone  competent  to  pass  any  law  relating  to  an  institu 
tion  which  belongs  exclusively  to  the  domestic  affairs 
of  the  States,  and  in  which  Congress  has  no  right  to 
interfere  in  any  way  whatever.* 

From  a  preceding  chapter,  (see  page  17,)  it  will  be  seen, 
that  if  slaves  are  property r,  property  can  be  interfered  with 
under  the  constitution  ;  if  slavery  is  a  domestic  institution, 
as  Mormonism  or  apprenticeship  is,  each  of  them  can  law- 

*  Note  to  Forty-third  Edition.  —  Not  long  before  this  essay  was  first  published,  Congress 
had  passed  by  a  unanimous  vote  the  following  declaratory  resolution  :  "  Resolved,  That 
neither  the  Federal  government,  nor  the  people,  nor  the  governments  of  the  non-slave- 
holding  States  have  the  right  to  legislate  upon  or  interfere  with  slavery  in  any  of  the 
slavcholding  States  of  the  Union;  "  and  had  proposed  to  amend  the  Constitution  so  that 
Art.  XIII.  would  have  read  as  follows  :  u  No  amendment  shall  be  made  to  the  Constitu 
tion  which  will  authorize  or  give  to  Congress  the  power  to  abolish  or  interfere,  within 
any  State,  with  the  domestic  institutions  thereof,  including  that  of  persons  held  to  labor 
or  service  by  the  laws  of  such  State." 


SLAVERY.  133 

fully  be  interfered  with  and  annulled.  But  slavery  has 
a  double  aspect.  So  long  as  it  remains  in  truth  "domes 
tic?  that  is  to  say,  according  to  Webster's  Dictionary, 
"pertaining  to  house  or  home"  so  long  government  cannot 
be  affected  by  it,  and  have  no  ground  for  interfering 
with  it ;  when,  on  the  contrary,  it  no  longer  pertains 
only  to  house  and  home,  but  enters  into  vital  questions 
of  war,  aid  and  comfort  to  public  enemies,  or  any  of 
the  national  interests  involved  in  a  gigantic  rebellion; 
when  slavery,  rising  above  its  comparative  insignifi 
cance  as  a  household  affair,  becomes  a  vast,  an  over 
whelming  power  which  is  used  by  traitors  to  overthrow 
the  government,  and  may  be  used  by  government  to 
overthrow  traitors,  it  then  ceases  to  be  merely  domestic ; 
it  becomes  a  belligerent  potver,  acting  against  the  "public 
welfare  and  common  defence."  No  institution  continues 
to  be  simply  "  domestic  "  after  it  has  become  the  effec 
tive  means  of  aiding  and  supporting  a  public  enemy. 

When  an  "institution"  compels  three  millions  of 
subjects  to  become  belligerent  traitors,  because  they 
are  slaves  of  disloyal  masters,  slavery  becomes  an  affair 
which  is  of  the  utmost  public  and  national  concern.  But 
the  constitution  not  only  empowers,  but,  under  certain 
contingencies,  requires  slavery  in  the  States  to  be  inter 
fered  with.  No  one  who  will  refer  to  the  sections  of 
that  instrument  here  cited,  will  probably  venture  to 
deny  the  power  of  Congress,  in  one  mode  or  another, 
to  interfere  for  or  against  the  institution  of  slavery. 

CONGRESS   MAY    PASS    LAWS  INTERFERING  FOR    THE   PRESERVATION 
AND  PROTECTION  OF   SLAVERY  IN   THE    STATES. 

Art.  IY.  Sect,  2,  required  that  fugitive  slaves  should  be 
delivered  up,  and  the  fugitive  slave  laws  were  passed  to 
carry  this  clause  into  effect. 


134  SLAVERY. 

Art.  I.  Sect.  9,  required  that  the  foreign  slave  trade 
should  not  be  interfered  with  prior  to  1808,  but  allowed 
an  importation  tax  to  be  levied  on  each  slave,  not  ex 
ceeding  ten  dollars  per  head. 

Art.  V.  provided  that  no  amendment  of  the  constitu 
tion  should  be  made,  prior  to  1808,  affecting  the  pre 
ceding  clause. 

Art.  I.  Sect.  2  provides  that  three  fifths  of  all  slave 
shall  be  included  in  representative  numbers. 

CONGRESS   MAY    INTERFERE   AGAINST    SLAVERY    IN   THE    STATES. 

Art.  I.  Sect  8.  Congress  has  power  to  regulate 
commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes.  Under  this  clause 
Congress  can  in  effect  prohibit  the  inter-state  slave  trade. 
and  so  pass  laws  diminishing  or  destroying  the  value 
of  slaves  in  the  border  States,  and  practically  abolish 
slavery  in  those  States. 

CONGRESS   MAY  INTERFERE   WITH   SLAVERY   BY   CALLING  UPON  THE 
SLAVES,  AS  SUBJECTS,   TO   ENTER  MILITARY  SERVICE. 

Art.  I.  Sect.  8.  Congress  has  the  power  to  declare 
war  and  make  rules  for  the  government  of  land  and 
naval  forces,  and  under  this  power  to  decide  who  shall 
constitute  the  militia  of  the  United  States,  and  to  enrol  and 
compel  into  the  service  of  the  United  States  all  the 
slaves,  as  well  as  their  masters,  and  thus  to  interfere 
with  slavery  in  the  States. 

CONGRESS   MAY  INTERFERE  WITH   SLAVERY  LN  THE   STATES  BY  CUT 
TING    OPF  THE  SUPPLY  OF   SLAVES   TO   SUCH    STATES. 

The  law  now  prohibiting  the  importation  of  slaves, 
and  making  slave  trading  piracy,  is  an  interference  with 
slavery,  by  preventing  their  introduction  into  the 


SLAVERY.  135 

slave  States.  So  also  is  the  treaty  with  England  to 
suppress  the  slave  trade,  and  to  keep  an  armed  naval 
force  on  the  coast  of  Africa. 

In  case  of  servile  insurrection  against  the  laws  and 
authority  of  the  United  States,  the  government  are 
bound  to  interfere  ivith  slavery r,  as  much  as  in  an  insurrec 
tion  of  their  masters,  which  may  also  require  a  similar 
interference.  The  President,  with  the  advice  and  con 
sent  of  the  Senate,  has  the  power  to  make  treaties ; 
and,  under  the  treaty-making  power,  slavery  can  be 
and  has  been  interfered  with.  In  the  last  war  with 
Great  Britain,  a  treaty  was  made  to  evacuate  all  the 
forts  and  places  in  the  United  States  without  carrying 
away  any  of  the  slaves  who  had  gone  over  to  them  in 
the  States.  Congress  then  interfered  to  sustain  the 
institution  of  slavery,  for  it  was  only  by  sustaining 
slavery  that  this  government  could  claim  indemnity  for 
slaves  as  property.  The  treaty-making  poiuer  may  abolish 
slavery  in  the  whole  country,  as,  by  Art.  VI.,  the  con 
stitution,  the  laws,  and  all  treaties  made  or  which  shall 
be  made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land.  A  clause  in  any 
treaty  abolishing  slavery  would,  ipso  facto,  become  the 
supreme  law  of  the  land,  and  there  is  no  power  what 
ever  that  could  interfere  with  or  prevent  its  operation. 
By  the  treaty-making  power,  any  part  of  the  country 
burdened  with  slavery,  and  wrested  from  us  by  con 
quest,  could  be  ceded  to  a  foreign  nation  who  do  not 
tolerate  slavery,  and  without  claim  of  indemnity.  The 
principle  is  well  established  that  "the  release  of  a 
territory  from  the  dominion  and  sovereignty  of  the 
country,  if  that  cession  be  the  result  of  coercion  or 
conquest,  does  not  impose  any  obligation  upon  the 


136  SLAVERY. 

government  to  indemnify  those  who  may  suffer  loss  of 
property  by  the  cession."  * 

The  State  of  New  York  had  granted  to  her  own  citi 
zens  many  titles  to  real  estate  lying  in  that  part  of  her 
territory  now  called  Vermont.  Vermont  separated 
itself  from  New  York,  and  declared  itself  an  inde 
pendent  State.  It  maintained  its  claims  to  such  an 
extent,  that  New  York,  by  act  of  July  14,  1789,  was 
enforced  to  empower  commissioners  to  assent  to  its 
independence ;  but  refused  to  compensate  persons 
claiming  lands  under  grant  from  New  York,  though 
they  were  deprived  of  them  by  Vermont.  The  ground 
taken  by  the  legislature  was,  that  the  government  was 
not  required  to  assume  the  burden  of  losses  produced  by 
conquest  or  by  the  violent  dismemberment  of  the  State. 

Supposing  England  and  France  should,  by  armed  in 
tervention,  compel  the  dismemberment  of  the  United 
States,  and  the  cession  of  the  slave  States  to  them  as 
conquered  territory ;  and  that  the  laws  of  the  con 
querors  allowed  no  slaveholding.  Could  any  of  the 
citizens  of  slave  States,  who  might  reside  in  the  free 
States,  having  remained  loyal,  but  having  lost  their 
slaves,  make  just  legal  claim  for  indemnity  upon  the 
government  ?  Certainly  not. 

Other  instances  may  be  cited  in  which  Congress 
has  the  power  and  duty  of  interference  in  the  local 
and  domestic  concerns  of  States,  other  than  those 
relating  to  slavery.f  Chief  Justice  Taney  says, — 

"  Moreover,  the  constitution  of  the  United  States,  as  far  as  it  has 
provided  for  an  emergency  of  this  kind,  and  authorized  the  general 
government  to  interfere  in  the  domestic  concerns  of  a  State,  ha^ 
treated  the  subject  as  political  in  its  nature,  and  placed  the  power 
in  the  hands  of  that  department.  Art.  IV.  Sect.  4  of  the  constitution 
of  the  United  States  provides  that  the  United  States  shall  guarantee  to 

*  1  Kent  Com.  178.  t  Luther  v.  JSorden,  7  How.  42. 


SLAVERY.  137 

every  State  in  the  Union  a  republican  form  of  government,  and  shall  pro 
tect  each  of  them  against  invasion,  and,  on  the  application  of  the  legisla 
ture,  or  of  the  executive  when  the  legislature  cannot  be  convened,  against 
domestic  violence.  Under  this  article  of  the  constitution  it  rests  with 
Congress  to  decide  what  government  is  the  established  one  in  a  State. 
For,  as  the  United  States  guarantees  to  each  State  a  republican  gov 
ernment,  Congress  must  necessarily  decide  what  government  is  estab 
lished,  before  it  can  determine  whether  it  is  republican  or  not.  And 
when  senators  and  representatives  of  a  State  are  admitted  into  the  coun 
cils  of  the  Union,  the  authority  of  the  government  under  which  they  are 
appointed,  as  well  as  its  republican  character,  is  recognized  by  the 
proper  constitutional  authority,  and  its  decision  is  binding  upon  every 
other  department  of  the  government,  and  could  not  be  questioned  in 
a  judicial  tribunal.  So,  too,  as  relates  to  the  clause  in  the  above-men 
tioned  article  of  the  constitution,  providing  for  cases  of  domestic 
violence.  It  rested  with  Congress,  too,  to  determine  the  means  proper 
to  be  adopted  to  fulfil  this  guaranty." 

Suppose,  then,  that  for  the  purpose  of  securing  "domes 
tic  tranquillity  "  and  to  suppress  domestic  violence.  Congress 
should  determine  that  emancipation  of  the  slaves  was  a 
necessary  and  proper  means,  it  would  be  the  duty  of  Con 
gress  to  adopt  those  means,  and  thus  to  interfere  with 
slavery .*  If  a  civil  war  should  arise  in  a  single  State 
between  the  citizens  thereof,  it  is  the  duty  of  Congress 
to  cause  immediate  interference  in  the  domestic  and  local 
affairs  of  that  State,  and  to  put  an  end  to  the  war ; 
and  this  interference  may  be  by  force  of  arms  and  by 
force  of  laws ;  and  the  fact  that  the  cause  of  quarrel  is 
domestic  and  private,  whether  it  be  in  relation  to  a  pro 
posed  change  in  the  form  of  government,  as  in  Dorr's 
rebellion,*  or  a  rebellion  growing  out  of  any  other 
domestic  matter,  the  constitution  authorizes  and 
requires  interference  by  the  general  government. 
Hence  it  is  obvious  that  if  slaves  be  considered  prop- 

*  See  Luther  v.  Borden,  7  How.  42. 

18 


138  SLAVERY. 

erty,  and  if  the  regulation  of  slavery  in  the  States  be 
deemed  in  some  aspects  one  of  the  domestic  affairs  of 
the  States  where  it  is  tolerated,  yet  these  facts  consti 
tute  no  reason  why  such  property  may  not  be  inter 
fered  with,  and  slavery  dealt  with  by  government 
according  to  the  emergencies  of  the  time,  whenever 
slavery  assumes  a  new  aspect,  and  rises  from  its  private 
and  domestic  character  to  become  a  matter  of  national 
concern,  and  imperils  the  safety  and  preservation  of 
the  whole  country.  We  are  not  to  take  our  opinions 
as  to  the  extent  or  limit  of  the  powers  contained  in  the 
constitution  from  partisans,  or  political  parties,  nor  even 
from  the  dicta  of  political  judges.  We  should  examine 
that  instrument  in  the  light  of  history  and  of  reason ; 
but  when  the  language  is  plain  and  clear,  we  need  no 
historical  researches  to  enable  us  to  comprehend  its 
meaning.  When  the  interpretation  depends  upon  tech 
nical  law,  then  the  contemporary  law  writers  must  be 
consulted.  The  question  as  to  the  meaning  of  the  con 
stitution  depends  upon  what  the  people,  the  plain 
people  who  adopted  it,  intended  and  meant  at  the 
time  of  its  adoption. 

AUTHORITATIVE   CONSTRUCTION  OF   THE   MEANING    OF    THE    CON 
STITUTION. 

The  conclusive  authority  on  its  interpretation  is  the 
document  itself.  When  questions  have  arisen  under 
that  instrument,  upon  which  the  Supreme  Court  have 
decided,  and  one  which  they  had  a  right  to  decide, 
their  opinion  is,  for  the  time  being,  the  supreme  au 
thority,  and  remains  so  until  their  views  are  changed 
and  new  ones  announced ;  and  as  often  as  the  Supreme 
Court  change  their  judgments,  so  often  the  authoritative 


SLAVERY.  139 

interpretation  of  the  constitution  changes.  The  Su 
preme  Court  have  the  right  to  alter  their  opinions  e\  ery 
time  the  same  question  is  decided  by  them ;  and  as 
new  judges  must  take  the  place  of  those  whose  offices 
are  vacated  by  death,  resignation,  or  impeachment,  it  is 
not  unlikely  that  opinions  of  the  majority  of  the  court 
may,  upon  constitutional  as  well  as  upon  other  questions, 
be  sometimes  on  one  side  and  sometimes  on  the  other. 

Upon  political  discussions,  such  as  were  involved  in 
the  Dred  Scott  case,  the  judges  are  usually  at  variance 
with  each  other;  and  the  view  of  the  majority  will 
prevail  until  the  majority  is  shifted.  The  judges  are 
not  legally  bound  to  adhere  to  their  own  opinions, 
although  litigants  in  their  courts  are.  Whenever  the 
majority  of  the  court  has  reason  to  overrule  a  former 
decision,  they  not  only  have  the  right,  but  it  is  their 
duty,  to  do  so. 

The  opinions  of  the  framers  of  the  constitution  are 
not  authority,  but  are  resorted  to  for  a  more  perfect 
understanding  of  the  meaning  they  intended  to  convey 
by  the  words  they  used ;  but  after  all,  the  words  should 
speak  for  themselves  ;  for  it  was  the  language  in  which 
that  instrument  was  worded  that  was  before  the  people 
for  discussion  and  adoption.  We  must  therefore  go 
back  to  that  original  source  of  our  supreme  law,  and 
regard  as  of  no  considerable  authority  the  platforms 
of  political  parties  who  have  attempted  to  import  into 
the  constitution  powers  not  authorized  by  fair  interpre 
tation  of  its  meaning,  or  to  deny  the  existence  of 
those  powers  which  are  essential  to  the  perpetuity  of 
the  government. 

A  political  party  may  well  waive  a  legal  constitu 
tional  right,  as  matter  of  equity,  comity,  or  public  pol- 


140  SLAVERY. 

icy ;  and  this  waiver  may  take  the  form  of  a  denial 
of  the  existence  of  the  power  thus  waived.  In  this 
manner  Mr.  Douglas  not  merely  waived,  but  denied, 
the  power  of  Congress  to  interfere  with  slavery  in  the 
territories ;  and  in  the  same  way  members  of  the  Re 
publican  party  have  disclaimed  the  right,  in  time  of 
peace,  to  interfere  with  slavery  in  the  States  ;  but  such 
disclaimers,  made  for  reasons  of  state  policy,  are  not 
to  be  regarded  as  enlarging  or  diminishing  the  rights 
or  duties  devolved  on  the  departments  of  govern 
ment,  by  a  fair  and  liberal  interpretation  of  all  the  pro 
visions  of  the  constitution. 

Rising  above  the  political  platforms,  the  claims  and 
disclaimers  of  Federalists,  Democrats,  Whigs,  Republi 
cans,  and  all  other  parties,  and  looking  upon  the  con 
stitution  as  designed  to  give  the  government  made  by 
the  people,  for  the  people,  the  powers  necessary  to  its 
own  preservation,  and  to  the  enforcement  of  its  laws, 
it  is  not  possible  justly  to  deny  the  right  of  govern 
ment  to  interfere  with  slavery,  Mormonism,  or  any 
other  institution,  condition,  or  social  status  into  which 
the  subjects  of  the  United  States  can  enter,  whenever 
such  interference  becomes  essential  as  a  means  of 
"  public  welfare  or  common  defence  in  time  of  war."* 

*  In  several  preceding  chapters  other  branches  of  this  subject  have  been  discussed. 
See  note  to  page  132. 


NOTES   ON   THE  WAR  POWERS. 

FIFTH   EDITION. 


MANY  of  the  leading  doctrines  contained  in  the  foregoing 
pages  have  received,  since  the  publication  of  the  fourth  edition, 
the  sanction  of  the  Supreme  Court  of  the  United  States,  of 
whose  authoritative  and  final  decision  in  the  prize  cases,  argued 
in  the  spring  of  1863,  the  following  is  the  substance  :  — 

IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES.  —  Claimant  of  schoon 
ers  Brilliant,  Crenshaw,  barque  Hiawatha  and  others,  appellants,  vs. 
United  States. 

These  causes  came  up  by  appeal  from  decrees  in  prize,  of  the  Circuit 
Courts  for  the  Southern  District  of  New  York,  and  the  District  of  Massa 
chusetts,  affirming  respectively  the  sentences  of  condemnation  passed  upon 
the  vessels  and  cargoes  by  the  District  Courts  for  said  districts.  The  fol 
lowing  opinion  is  confined  to  the  general  questions  of  law  which  were  raised 
by  all  the  cases.  It  does  not  discuss  the  special  facts  and  circumstances  of 
the  respective  cases. 

March  9th,  1863.     Opinion  of  the  Court  by  GRIER,  J. 

There  are  certain  propositions  of  law  which  must  necessarily  affect  the 
ultimate  decision  of  these  cases  and  many  others,  which  it  will  be  proper  to 
discuss  and  decide  before  we  notice  the  special  facts  peculiar  to  each.  They 
are,  — 

First.  Had  the  President  a  right  to  institute  a  blockade  of  ports  in  pos 
session  of  persons  in  armed  rebellion  against  the  government,  on  the  prin 
ciples  of  international  law,  as  known  and  acknowledged  among  civilized 
States  ? 

Second.  Was  the  property  of  persons  domiciled  or  residing  within  those 
States  a  proper  subject  of  capture  on  the  sea  as  "  enemies'  property"  ? 

I.  Neutrals  have  a  right  to  challenge  the  existence  of  a  blockade  de 
facto,  and  also  the  authority  of  the  party  exercising  the  right  to  institute 
it.  They  have  a  right  to  enter  the  ports  of  a  friendly  nation  for  the  pur 
poses  of  trade  and  commerce,  but  are  bound  to  recognize  the  rights  of  a  bel 
ligerent  engaged  in  actual  war,  to  use  this  mode  of  coercion  for  the  purpose 
of  subduing  the  enemy. 

That  a  blockade  de  facto  actually  existed  and  was  formally  declared  and 
notified  by  the  President  on  the  27th  and  30th  of  April,  1861,  is  an  admit 
ted  fact  in  these  cases.  That  the  President,  as  the  executive  chief  of  the 
government,  and  commander-in-chief  of  the  army  and  navy,  was  the  proper 
person  to  make  such  notification,  has  not  been,  and  cannot  be,  disputed. 

The  right  of  prize  and  capture  has  its  origin  in  the  jus  belli,  and  is  gov 
erned  and  adjudged  under  the  law  of  nations.  To  legitimate  the  capture 
of  a  neutral  vessel,  or  property  on  the  high  seas,  a  war  must  exist  de  facto, 
and  the  neutral  must  have  a  knowledge  or  notice  of  the  intention  of  one  of 
the  parties  belligerent  to  use  this  mode  of  coercion  against  a  port,  city,  or 
territory  in  possession  of  the  other. 

Let  us  inquire  whether,  at  the  time  this  blockade  was  instituted,  a  state 

(141) 


142  NOTES. 

of  war  existed  which  would  justify  a  resort  to  these  means  of  subduing  the 
hostile  force. 

War  has  been  well  defined  to  be  "  that  state  in  which  a  nation  prosecutes 
its  right  by  force."  The  parties  belligerent  in  a  public  war  are  independent 
nations.  But  it  is  not  necessary  tq  constitute  war,  that  both  parties  should 
be  acknowledged  as  independent  nations  or  sovereign  States.  A  war  may 
exist  where  one  of  the  belligerents  claims  sovereign  rights  as  against  the 
other. 

Insurrection  against  a  government  may  or  may  not  culminate  in  an 
organized  rebellion ;  but  a  civil  war  always  begins  by  insurrection  against 
the  lawful  authority  of  the  government.  A  civil  war  is  never  sol 
emnly  declared;  it  becomes  such  by  its  accidents  —  the  number,  power, 
and  organization  of  the  persons  who  originate  and  carry  it  on.  When  the 
party  in  rebellion  occupies  and  holds  in  a  hostile  manner  a  certain  portion 
of  territory,  have  declared  their  independence,  have  cast  off'  their  allegiance, 
have  organized  armies,  have  commenced  hostilities  against  their  former  sov 
ereign,  the  world  acknowledges  them  as  belligerents,  and  the  contest  a  war. 
They  claim  to  be  in  arms  to  establish  their  liberty  and  independence,  in 
order  to  become  a  sovereign  State,  while  the  sovereign  party  treats  them  as 
insurgents  and  rebels  who  owe  allegiance,  and  who  should  be  punished  with 
death  for  their  treason. 

The  laws  of  war,  as  established  among  nations,  have  their  foundation  in 
reason,  and  all  tend  to  mitigate  the  cruelties  and  misery  produced  by  the 
scourge  of  war.  Hence  the  parties  to  a  civil  war  usually  concede  to  each 
other  belligerent  rights.  They  exchange  prisoners,  and  adopt  the  other 
courtesies  and  rules  common  to  public  or  national  wars. 

"  A  civil  war,"  says  Vattel,  "  breaks  the  bands  of  society  and  govern 
ment,  or,  at  least,  suspends  their  force  and  effect ;  it  produces  in  the  nation 
two  independent  parties,  who  consider  each  other  as  enemies,  and  acknowl 
edge  no  common  judge.  Those  two  parties,  therefore,  must  necessarily  be 
considered  as  constituting,  at  least  for  a  time,  two  separate  bodies  —  two  dis 
tinct  societies.  Having  no  common  superior  to  judge  between  them,  they 
stand  in  precisely  the  same  predicament  as  two  nations  who  engage  in  a 
contest  and  have  recourse  to  arms.  This  being  the  case,  it  is  very  evident 
that  the  common  laws  of  war,  those  maxims  of  humanity,  moderation,  and 
honor,  ought  to  be  observed  by  both  parties  in  every  civil  war.  Should  the 
sovereign  conceive  that  he  has  a  right  to  hang  up  his  prisoners  as  rebels, 
the  opposite  party  will  make  reprisals,  &c.,  &c.  ;  the  war  will  be  cruel,  hor 
rible,  and  every  day  more  destructive  to  the  nation." 

As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine,  against  insurgents, 
its  actual  existence  is  a  fact  in  our  domestic  history  which  the  Court  is 
bound  to  notice  and  to  know. 

The  true  test  of  its  existence,  as  found  in  the  writings  of  the  sages  of  the 
common  law,  may  be  thus  summarily  stated :  "  When  the  regular  course 
of  justice  is  interrupted  by  revolt,  rebellion,  or  insurrection,  so  that  the 
courts  of  justice  cannot  be  kept  open,  civil  war  exists,  and  hostilities  may 
be  prosecuted  on  the  same  footing  as  if  those  opposing  the  government  were 
foreign  enemies  invading  the  land."  By  the  constitution,  Congress  alone 
has  the  power  to  declare  a  national  or  foreign  war.  It  cannot  declare  war 
against  a  State,  or  any  number  of  States,  by  virtue  of  any  clause  in  the 
constitution.  The  constitution  confers  on  the  President  the  whole  execu 
tive  power.  He  is  bound  to  take  care  that  the  laws  be  faithfully  executed. 
He  is  Commander-in-chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  militia  of  the"  several  States  when  called  into  the  actual  service 
of  the  United  States.  He  has  no  power  to  initiate  or  declare  a  war,  either 
against  a  foreign  nation  or  a  domestic  State.  But  by  the  acts  of  Congress 


NOTES.  143 

of  February  28th,  1795,  and  3d  of  March,  1807,  he  is  author.zed  to  call  out 
the  militia,  and  use  the  military  and  naval  forces  of  the  United  States  in 
case  of  invasion  by  foreign  nations,  and  to  suppress  insurrection  against 
the  government  of  a  State  or  of  the  United  States. 

If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President  is  not 
only  authorized  but  bound  to  resist  force  by  force.  He  does  not  initiate 
the  war,  but  is  bound  to  accept  the  challenge  without  waiting  for  any  spe 
cial  legislative  authority.  And  whether  the  hostile  party  be  a  foreign 
invader,  or  States  organized  in  rebellion,  it  is  none  the  less  a  ivar,  although 
the  declaration  of  it  be  "unilateral"  Lord  Stowell  (1  Dodson,  247) 
observes,  "  It  is  not  the  less  a  war  on  that  account,  for  war  may  exist  with 
out  a  declaration  on  either  side.  It  is  so  laid  down  by  the  best  writers  on 
the  law  of  nations.  A  declaration  of  war  by  one  country  only,  is  not  a  mere 
challenge,  to  be  accepted  or  refused  at  pleasure  by  the  other." 

This  greatest  of  civil  wars  was  not  gradually  developed  by  popular  com 
motion,  tumultuous  assemblies,  or  local  unorganized  insurrections.  How 
ever  long  may  have  been  its  previous  conception,  it  nevertheless  sprung 
forth  suddenly  from  the  parent  brain,  a  Minerva  in  the  full  panoply  of  war. 
The  President  was  bound  to  meet  it  in  the  shape  it  presented  itself,  without 
waiting  for  Congress  to  baptize  it  with  a  name  ;  and  no  name  given  to  it 
by  him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  Avith  belligerent  parties  in  hostile  array, 
because  it  may  be  called  an  "  insurrection  "  by  one  side,  and  the  insurgents 
be  considered  as  rebels  or  traitors.  It  is  not  necessary  that  the  independ 
ence  of  the  revolted  province  or  State  be  acknowledged,  in  order  to  con 
stitute  it  a  party  belligerent  in  a  war,  according  to  the  law  of  nations. 
Foreign  nations  acknowledge  it  as  war  by  a  declaration  of  neutrality.  The 
condition  of  neutrality  cannot  exist  unless  there  be  two  belligerent  parties. 
In  the  case  of  Santissima  Trinidad,  7  Wheaton,  337,  this  Court  says, 
"  The  government  of  the  United  States  has  recognized  the  existence  of  a 
civil  war  between  Spain  and  her  colonies,  and  has  avowed  her  determina 
tion  to  remain  neutral  between  the  parties.  Each  party  is,  therefore, 
deemed  by  us  a  belligerent  nation,  having,  so  far  as  concerns  us,  the  sov 
ereign  rights  of  war."  See  also  3  Binn.,  252. 

As  soon  as  the  news  of  the  attack  on  Fort  Sumter,  and  the  organization 
of  a  government  by  the  seceding  States,  assuming  to  act  as  belligerents, 
could  become  known  in  Europe,  to  wit,  on  the  13th  of  May,  1861,  the 
Queen  of  England  issued  her  proclamation  of  neutrality,  "  recognizing  hos 
tilities  as  existing  between  the  government  of  the  United  States  of  Ameri 
ca  and  certain  States  styling  themselves  the  Confederate  States  of  America." 
This  was  immediately  followed  by  similar  declarations,  or  silent  acquiescence, 
by  other  nations. 

After  such  an  official  recognition  by  the  sovereign,  a  citizen  of  a  foreign 
State  is  estopped  to  deny  the  existence  of  a  war,  with  all  its  consequences 
as  regards  neutrals.  They  cannot  ask  a  Court  to  affect  a  technical  igno 
rance  of  the  existence  of  a  war  which  all  the  world  acknowledges  to  be  the 
greatest  civil  war  known  in  the  history  of  the  human  race,  and  thus  cripple 
the  arm  of  the  government  and  paralyze  its  powers  by  subtle  definitions  and 
ingenious  sophisms. 

The  law  of  nations  is  also  called  the  law  of  nature  ;  it  is  founded  on  the 
common  consent  as  well  as  the  common  sense  of  the  world.  It  contains  no 
such  anomalous  doctrine  as  that  which  this  Court  are  now,  for  the  first  time, 
desired  to  pronounce,  to  wit :  — 

That  insurgents  who  have  risen  in  rebellion  against  their  sovereign,  ex 
pelled  her  Courts,  established  a  revolutionary  government,  organized  armies, 
and  commenced  hostilities,  are  not  enemies  because  they  are  traitors  ;  and 


144  NOTES. 

a  war  levied  on  the  government  by  traitors,  in  order  to  dismember  and 
destroy  it,  is  not  a  war,  because  it  is  an  "  insurrection." 

Whether  the  President,  in  fulfilling  his  duties  as  commander-in-chief,  in 
suppressing  an  insurrection,  has  met  with  such  armed  hostile  resistance, 
and  a  civil  war  of  such  alarming  proportions,  as  will  compel  him  to  accord 
to  them  the  character  of  belligerents,  is  a  question  to  be  decided  by  him ; 
and  this  Court  must  be  governed  by  the  decisions  and  acts  of  the  political 
department  of  the  government  to  which  this  power  was  intrusted.  "He 
must  determine  what  degree  of  force  the  crisis  demands."  The  proclama 
tion  of  blockade  is  itself  official  and  conclusive  evidence  to  the  Court  that 
a  state  of  war  existed  which  demanded  and  authorized  a  recourse  to  such  a 
measure,  under  the  circumstances,  peculiar  to  the  case.  The  correspond 
ence  of  Lord  Lyons  with  the  Secretary  of  State  admits  the  fact  and  con 
cludes  the  question. 

If  it  were  necessary  to  the  technical  existence  of  a  war  that  it  should 
have  a  legislative  sanction,  we  find  it  in  almost  every  act  passed  at  the 
extraordinary  session  of  the  Legislature  of  1861,  which  was  wholly  em 
ployed  in  passing  laws  to  enable  the  government  to  prosecute  the  war  with 
vigor  and  efficiency.  And  finally,  in  1861,  AVC  find  Congress,  "  ex  majore 
cautela,"  passing  an  act,  approving,  legalizing,  and  making  valid  all  the  acts, 
proclamations,  and  orders  of  the  President,  &c.,  "  as  if  they  had  been 
issued  and  done  under  the  previous  express  authority  and  direction  of  the 
Congress  of  the  United  States." 

Without  admitting  that  such  an  act  was  necessary  under  the  circum 
stances,  it  is  plain,  if  the  President  had  in  any  manner  assumed  powers 
which  it  was  necessary  should  have  the  authority  or  sanction  of  Congress, 
that  the  well-known  principle  of  law,  "  Omnis  ratihabitio  retrotrahitur  et 
mandato  equip  aratur,"  this  ratification  has  operated  to  perfectly  cure  the 
defect. 

In  the  case  of  Brown  vs.  United  States,  8  Cranch,  131,  132,  133,  Mr. 
Justice  Story  treats  of  this  subject,  and  cites  numerous  authorities,  to 
which  we  may  refer,  to  prove  this  position,  and  concludes,  "  I  am  perfectly 
satisfied  that  no  subject  can  commence  hostilities  or  capture  property  of  an 
enemy,  when  the  sovereign  has  prohibited  it.  But  suppose  he  did.  I 
would  ask  if  the  sovereign  may  not  ratify  his  proceedings  ;  and  then,  by  a 
retroactive  operation,  give  validity  to  them." 

Although  Mr.  Justice  Story  dissented  from  the  majority  of  the  Court  on 
the  whole  case,  the  doctrine  stated  by  him  on  this  point  is  correct  and  fully 
substantiated  by  authority. 

The  objection  made  to  this  act  of  ratification,  that  it  is  ex  post  facto,  and 
therefore  unconstitutional  and  void,  might  possibly  have  some  weight  on 
the  trial  of  an  indictment  in  a  criminal  Court.  But  precedents  from  that 
source  cannot  be  received  as  authoritative  in  a  tribunal  administering  pub 
lic  and  international  law. 

On  this  first  question,  therefore,  we  are  of  opinion  that  the  President  had 
a  right  jure  belli  to  institute  a  blockade  of  ports  in  possession  of  the  States 
in  rebellion,  which  neutrals  are  bound  to  regard. 

II.  We  come  now  to  the  consideration  of  the  second  question.  What  is 
included  in  the  term  "  enemies'  property  "  ? 

Is  the  property  of  all  persons  residing  within  the  territory  of  the  States 
now  in  rebellion,  captured  on  the  high  seas,  to  be  treated  as  "  enemies'  prop 
erty,"  whether  the  owner  be  in  arms  against  the  government  or  not  ? 

The  right  of  one  belligerent  not  only  to  coerce  the  other  by  direct  force, 
but  also  to  cripple  his  resources  by  the  seizure  or  destruction  of  his  prop 
erty,  is  a  necessary  result  of  a  state  of  war. 

Money  and  wealth,  the  products  of  agriculture  and  commerce,  are  said  to 


NOTES.  145 

be  the  sinews  of  war,  and  as  necessary  in  its  conduct  as  numbers  and  phys 
ical  force.     Hence  it  is,  that  the  laws  of  war  recognize  the  right  of  a  belli 
gerent  to  cut  these  sinews  of  the  power  of  the  enemy,  by  capturing  his  prop 
erty  on  the  high  seas. 

The  appellants  contend  that  the  term  enemies^  is  properly  applicable  to 
those  only  who  are  subjects  or  citizens  of  a  foreign  State  at  war  with  our 
own.  They  quote  from  the  pages  of  the  Common  Law,  which  say,  "  that 
persons  who  wage  war  against  the  king  may  be  of  two  kinds,  subjects  or 
citizens.  The  former  are  not  proper  enemies,  but  rebels  and  traitors  ;  the 
latter  are  those  that  come  properly  under  the  name  of  enemies." 

They  insist,  moreover,  that  the  President  himself,  in  his  proclamation,  ad 
mits  that  great  numbers  of  the  persons  residing  within  the  territories  in  pos 
session  of  the  insurgent  government,  are  loyal  in  their  feelings,  and  forced 
by  compulsion  and  the  violence  of  the  rebellious  and  revolutionary  party, 
and  its  "  de  facto  government,"  to  submit  to  their  laws  and  assist  in  their 
scheme  of  revolution;  that  the  acts  of  the  usurping  government  cannot 
legally  sever  the  bond  of  their  allegiance  ;  they  have,  therefore,  a  correla 
tive  right  to  claim  the  protection  of  the  government  for  their  persons  and 
property,  and  to  be  treated  as  loyal  citizens,  till  legally  convicted  of  having 
renounced  their  allegiance,  and  made  war  against  the  government  by  trea 
sonably  resisting  its  laws. 

They  contend  also  that  insurrection  is  the  act  of  individuals,  and  not  of  a 
government  or  sovereignty  ;  that  the  individuals  engaged  are  subjects  of 
law  ;  that  confiscation  of  their  property  can  be  effected  only  under  munici 
pal  law  ;  that,  by  the  law  of  the  land,  such  confiscation  cannot  take  place 
without  the  conviction  of  the  owner  of  some  offence  ;  and  finally,  that  the 
secession  ordinances  are  nullities,  and  ineffectual  to  release  any  citizen  from 
his  allegiance  to  the  national  government ;  consequently,  the  constitution  and 
laws  of  the  United  States  are  still  operative  over  persons  in  all  the  States  for 
punishment  as  well  as  protection. 

This  argument  rests  on  the  assumption  of  two  propositions,  each  of  which 
is  without  foundation  on  the  established  law  of  nations. 

It  assumes  that  where  a  civil  war  exists,  the  party  belligerent  claiming  to 
be  sovereign  cannot,  for  some  unknown  reason,  exercise  the  rights  of  belliger 
ents,  although  the  revolutionary  party  may.  Being  sovereign,  he  can  exer 
cise  only  sovereign  rights  over  the  other  party.  The  insurgent  may  be  killed 
on  the  battle-field,  or  by  the  executioner ;  his  property  on  land  may  be  con 
fiscated  under  the  municipal  law  ;  but  the  commerce  on  the  ocean,  which 
supplies  the  rebels  with  means  to  support  the  war,  cannot  be  made  the  sub 
ject  of  capture  under  the  laws  of  war,  because  it  is  "unconstitutional  ".' .'  / 
Now,  it  is  a  proposition  never  doubted,  that  the  belligerent  party  who  claims 
to  be  sovereign,  may  exercise  both  belligerent  and  sovereign  rights.  (See  4 
Cranch,  272.)  Treating  the  other  party  as  a  belligerent,  and  using  only  the 
milder  modes  of  coercion  which  the  law  of  nations  has  introduced  to  miti 
gate  the  rigors  of  wa&  cannot  be  a  subject  of  complaint  by  the  party  to 
whom  it  is  accorded  as  a  grace  or  granted  as  a  necessity. 

We  have  shown  that  a  civil  war,  such  as  that  now  waged  between  the 
Northern  and  Southern  States,  is  properly  conducted,  according  to  the 
humane  regulations  of  public  law,  as  regards  capture  on  the  ocean. 

Under  the  very  peculiar  constitution  of  this  government,  although  the 
citizens  owe  supreme  allegiance  to  the  Federal  government,  they  o-vye  also 
a  qualified  allegiance  to  the  State  in  which  they  are  domiciled ;  their  per 
sons  and  property  are  subject  to  its  laws. 

Hence,  in  organizing  this  rebellion,  they  have  acted  as  States,  claiming  to 
be  sovereign  over  all  persons  and  property  within  their  respective  limits, 
and  asserting  a  right  to  absolve  their  citizens  from  their  allegiance  to  the 

19 


146  NOTES. 

Federal  government.  Several  of  these  States  have  combined  to  form  a  new 
confederacy,  claiming  to  be  acknowledged  by  the  world  as  a  sovereign 
State.  Their  right  to  do  so  is  now  being  decided  by  wager  of  battle.  The 
ports  and  territory  of  each  of  these  States  are  held  in  hostility  to  the  gen 
eral  government.  It  is  no  loose,  unorganized  insurrection,  having  no 
denned  boundary  or  possession.  It  has  a  boundary,  marked  by  lines  of 
bayonets,  and  which  can  be  crossed  only  by  force.  South  of  this  line  is 
enemy's  territory,  because  it  is  claimed  and  held  in  possession  by  an  organ 
ized,  hostile,  and  belligerent  power. 

All  persons  residing  within  this  territory,  whose  property  may  be  used  to 
increase  the  revenues  of  the  hostile  power,  are  in  this  contest  liable  to  be 
treated  as  enemies,  though  not  foreigners.  They  have  cast  oft'  their  alle 
giance,  and  made  war  on  their  government,  and  are  none  the  less  enemies 
because  they  are  traitors. 

But  in  defining  the  meaning  of  the  term  "  enemies'  property,"  we  will  be 
led  into  error  if  we  refer  to  Fleta  and  Lord  Coke  for  their  definition  of  the 
"word  "  enemy."  It  is  a  technical  phrase  peculiar  to  prize  courts,  and 
depends  upon  principles  of  public  as  distinguished  from  the  common  law. 

Whether  property  be  liable  to  capture  as  "  enemies'  property,"  does  not 
in  any  manner  depend  on  the  personal  allegiance  of  the  owner.  "  It  is  the 
illegal  traffic  that  stamps  it  as  '  enemies'  property.'  It  is  of  no  consequence 
whether  it  belongs  to  an  ally  or  a  citizen."  8  Cranch,  384.  "  The  owner 
pro  liac  vice  is  an  enemy."  3  Wash.  C.  C.  R.  183. 

The  produce  of  the  soil  of  the  hostile  territory,  as  well  as  other  property 
engaged  in  the  commerce  of  the  hostile  power,  as  the  source  of  its  wealth 
and  strength,  is  always  regarded  as  legitimate  prize,  without  regard  to  the 
domicile  of  the  owner,  and  much  more  so  if  he  reside  and  trade  within  its 
territory.  (See  Upton,  chap.  3d,  et  cas.  cit.) 


The  foregoing  opinion  of  the  highest  judicial  tribunal  of  the  United 
States  was  delivered  by  Mr.  Justice  Grier,  and  was  concurred  in  by  Justices 
Wayne,  Swayne,  Miller,  and  Davis.  An  opinion  was  delivered  by  Mr. 
Justice  Nelson,  and  concurred  in  by  Chief  Justice  Taney,  and  Justices  Clif 
ford  and  Catron,  who  differed  from  the  majority  of  the  Court  upon  the 
question,  "  whether  our  civil  war  began  before  July  13,  1861  ?  "  the  major 
ity  holding  the  affirmative,  and  the  minority  the  negative. 

Both  opinions  sanction  many  of  the  doctrines  of  international,  constitu 
tional,  and  belligerent  law  set  forth  in  the  treatise  on  the  "  War  Powers  of 
the  President,  and  the  Legislative  Power  of  Congress" 

Mr.  Justice  NELSON,  dissenting.  The  property  in  this  case,  vessel  and 
cargo,  was  seized  by  a  government  vessel  on  the  20th  of  May,  1861,  in 
Hampton  Roads,  for  an  alleged  violation  of  the  blockade  of  the  ports  of  the 
State  of  Virginia.  The  Hiawatha  was  a  British  vessel,  and  the  cargo 
belonged  to  British  subjects.  The  vessel  had  entered  the  James  River 
before  the  blockade,  on  her  way  to  City  Point,  upwards  of  one  hundred 
miles  from  the  mouth,  where  she  took  in  her  cargo.  She  finished  loading 
on  the  loth  of  May,  but  was  delayed  from  departing  on  her  outward  voyage 
till  the  17th  for  want  of  a  tug  to  tow  her  down  the  river.  She  arrived  at 
Hampton  Roads  on  the  20th,  where,  the  blockade  in  the  mean  time  having 
been  established,  she  was  met  by  one  of  the  ships,  and  the  boarding  officer 
indorsed  on  her  register,  "  Ordered  not  to  enter  any  port  in  Virginia,  or 
south  of  it."  This  occurred  some  three  miles  above  the  place  where  the 
flag  ship  was  stationed,  and  the  boarding  officer  directed  the  master  to  heave 
his  ship  to  when  he  came  abreast  of  the  flag-ship,  which  was  done,  when 
»he  was  taken  in  charge  as  prize. 


NOTES.  147 

On  the  30th  of  April,  flag-officer  Pendergrast,  U.  S.  ship  Cumberland,  off 
Fortress  Monroe,  in  Hampton  Iloads,  gave  the  following  notice  :  "  All 
vessels  passing  the  capes  of  Virginia,  coming  from  a  distance  and  ignorant 
of  the  proclamation  (the  proclamation  of  the  President  of  the  27th  of 
April  that  a  blockade  would  be  established),  will  be  warned  off;  and  those 
passing  Fortress  Monroe  will  be  required  to  anchor  under  the  guns  of  the 
fort  and  subject  themselves  to  an  examination." 

The  Hiawatha,  while  engaged  in  putting  on  board  her  cargo  at  City 
Point,  became  the  subject  of  correspondence  between  the  British  Minister 
and  the  Secretary  of  State,  under  date  of  the  8th  and  9th  of  May,  which  drew 
from  the  Secretary  of  the  Navy  a  letter  of  the  9th,  in  which,  after  referring 
to  the  above  notice  of  the  flag  officer  Pendergrast,  and  stating  that  it  had 
been  sent  to  the  Baltimore  and  Norfolk  papers,  and  by  one  or  more  published, 
advised  the  Minister  that  fifteen  days  had  been  fixed  as  a  limit  for  neutrals 
to  leave  the  ports  after  an  actual  blockade  had  commenced,  with  or  without 
cargo.  The  inquiry  of  the  British  Minister  had  referred  not  only  to  the 
time  that  a  vessel  would  be  allowed  to  depart,  but  whether  it  might  be 
ladened  within  the  time.  This  vessel,  according  to  the  advice  of  the  Secre 
tary,  would  be  entitled  to  the  whole  of  the  loth  of  May  to  leave  City  Point, 
her  port  of  lading.  As  we  have  seen,  her  cargo  was  on  board  within  the 
time,  but  the  vessel  was  delayed  in  her  departure  for  want  of  a  tug  to  tow 
her  down  the  river. 

We  think  it  very  clear,  upon  all  the  evidence,  that  there  was  no  intention 
on  the  part  of  the  master  to  break  the  blockade ;  that  the  seizure  under  the 
circumstances  was  not  warranted,  and  upon  the  merits,  that  the  ship  and 
cargo  should  have  been  restored. 

Another  ground  of  objection  to  this  seizure  is,  that  the  vessel  was  enti 
tled  to  a  warning  indorsed  on  her  papers  by  an  officer  of  the  blockading 
force,  according  to  the  terms  of  the  proclamation  of  the  President ;  and 
that  she  was  not  liable  to  capture  except  for  the  second  attempt  to  leave 
the  port. 

The  proclamation,  after  certain  recitals,  not  material  in  this  branch  of  the 
case,  provides  as  follows :  the  President  has  "  deemed  it  advisable  to  set  on 
foot  a  blockade  of  the  ports  within  the  States  aforesaid  (the  States  referred 
to  in  the  recitals),  in  pursuance  of  the  laws  of  the  United  States  and  of  the 
law  of  nations,  in  such  case  made  and  provided."  "  If,  therefore,  with  a 
view  to  violate  such  blockade,  a  vessel  shall  approach,  or  shall  attempt  to 
leave  either  of  said  ports,  she  will  be  duly  warned  by  the  commander  of 
one  of  the  blockading  vessels,  who  will  indorse  on  her  register  the  fact  and 
date  of  such  warning,  and  if  the  same  vessel  shall  again  attempt  to  enter 
or  leave  the  blockaded  port,  she  will  be  captured  and  sent  to  the  nearest 
convenient  port  for  such  proceedings  against  her  and  her  cargo,  as  prize, 
as  may  be  deemed  advisable." 

The  proclamation  of  the  President  of  the  27th  of  April  extended  that  of 
the  19th  to  the  States  of  Virginia  and  North  Carolina. 

It  will  be  observed  that  this  warning  applies  to  vessels  attempting  to 
enter  or  leave  the  port,  and  is  therefore  applicable  to  the  Hiawatha. 

We  must  confess  that  we  have  not  heard  any  satisfactory  answer  to  the 
objection  founded  upon  the  terms  of  this  proclamation. 

It  has  been  said  that  the  proclamation,  among  other  grounds,  as  stated 
on  its  face,  is  founded  on  the  "  law  of  nations,"  and  hence  draws  after  it  the 
law  of  blockade  as  found  in  that  code,  and  that  a  warning  is  dispensed  with 
[n  all  cases  where  the  vessel  is  chargeable  with  previous  notice  or  knowledge 
that  the  port  is  blockaded.  But  the  obvious  answer  to  the  suggestion  is, 
that  there  is  no  necessary  connection  between  the  authority  upon  which  the 


148  NOTES. 

proclamation  is  issued  and  the  terms  prescribed  as  the  condition  of  its  pen 
alties  or  enforcement,  and,  besides,  if  founded  upon  the  law  of  nations, 
surely  it  was  competent  for  the  President  to  mitigate  the  rigors  of  that  code, 
and  apply  to  neutrals  the  more  lenient  and  friendly  principles  of  inter 
national  law.  We  do  not  doubt  but  that  considerations  of  this  character 
influenced  the  President  in  prescribing  these  favorable  terms  in  respect  to 
neutrals  ;  for,  in  his  message  a  few  months  later  to  Congress  (4th  July), 
he  observes,  "  a  proclamation  was  issued  for  closing  the  ports  of  the  insur 
rectionary  districts  "  (not  by  blockade,  but)  "  by  proceedings  in  the  nature 
of  a  blockade." 

This  view  of  the  proclamation  seems  to  have  been  entertained  by  the 
Secretary  of  the  Navy,  under  whose  orders  it  was  carried  into  execution. 
In  his  report  to  the  President,  4th  July,  he  observes,  after  referring  to 
the  necessity  of  interdicting  commerce  at  those  ports  where  the  govern 
ment  were  not  permitted  to  collect  the  revenue,  that  "  in  the  performance 
of  this  domestic  municipal  duty  the  property  and  interests  of  foreigners 
became,  to  some  extent,  involved  in  our  home  questions,  and  with  a  view 
of  extending  to  them  every  comity  that  circumstances  would  justify,  the 
rules  of  blockade  were  adopted,  and,  as  far  as  practicable,  made  applicable 
to  the  cases  that  occurred  under  this  embargo  or  non-intercourse  of  the 
insurgent  States.  The  commanders,  he  observes,  were  directed  to  permit 
the  vessels  of  foreigners  to  depart  within  fifteen  days  as  in  case  of  actual 
effective  blockade,  and  their  vessels  were  not  to  be  seized  unless  they 
attempted,  after  having  been  once  warned  off,  to  enter  an  interdicted  port  in 
disregard  of  such  warning." 

The  question  is  not  a  new  one  in  this  Court.  The  British  government 
had  notified  the  United  States  of  the  blockade  of  certain  ports  in  the  West 
Indies,  but  "  not  to  consider  blockades  as  existing,  unless  in  respect  to  par 
ticular  ports  which  may  be  actually  invested,  and,  then,  not  to  capture  ves 
sels  bound  to  such  ports,  unless  they  shall  have  been  previously  warned  not 
to  enter  them." 

The  question  arose  upon  this  blockade  in  Mar.  In.  Co.  vs.  Woods 
(6  Cranch,  29). 

Chief  Justice  Marshall,  in  delivering  the  opinion  of  the  court,  observed, 
"  The  words  of  the  order  are  not  satisfied  by  any  previous  notice  which  the 
vessel  may  have  obtained,  otherwise  than  by  her  being  warned  off.  This  is 
a  technical  term  which  is  well  understood.  It  is  not  satisfied  by  notice 
received  in  any  other  manner.  The  effect  of  this  order  is,  that  a  vessel 
cannot  be  placed  in  the  situation  of  one  having  notice  of  the  blockade  until 
she  is  warned  off.  It  gives  her  a  right  to  inquire  of  the  blockading  squad 
ron,  if  she  shall  not  receive  this  warning  from  one  capable  of  giving  it, 
and,  consequently,  dispenses  with  her  making  that  inquiry  'elsewhere. 
While  this  order  was  in  force  a  neutral  vessel  might  lawfully  sail  for  a 
blockaded  port,  knowing  it  to  be  blockaded,  and  being  found  sailing  towards 
such  port,  would  not  constitute  an  attempt  to  break  the  blockade  until  she 
should  be  warned  off." 

We  are  of  opinion,  therefore,  that,  according  to  the  very  terms  of  the 
proclamation,  neutral  ships  were  entitled  to  a  warning  by  one  of  the  block 
ading  squadron,  and  could  be  lawfully  seized  only  on  the  second  attempt  to 
enter  or  leave  the  port. 

It  is  remarkable,  also,  that  both  the  President  and  the  Secretary,  in  refer- 
ling  to  the  blockade,  treat  the  measure,  not  as  a  blockade  under  the  law  of 
nations,  but  as  a  restraint  upon  commerce  at  the  interdicted  ports  under  the 
municipal  laws  of  the  government. 

Another  objection  taken  to  the  seizure  of  this  vessel   and  cargo  is,  that 


NOTES.  149 

there  was  no  existing  war  between  the  United  States  and  the  States  in  in 
surrection,  within  the  meaning  of  the  law  of  nations,  which  drew  after  it 
the  consequences  of  a  public  or  civil  war.  A  contest  by  force  between 
independent  sovereign  States  is  called  a  public  war  ;  and,  when  duly  com 
menced,  by  proclamation  or  otherwise,  it  entitles  both  of  the  belligerent 
parties  to  all  the  rights  of  war  against  each  other  and  as  respects  neutral 
nations.  Chancellor  Kent  observes,  "  Though  a  solemn  declaration,  or  pre 
vious  notice  to  the  enemy,  be  now  laid  aside,  it  is  essential  that  some  for 
mal  public  act,  proceeding  directly  from  the  competent  source,  should 
announce  to  the  people  at  home  their  new  relations  and  duties  growing  out 
of  a  state  of  war,  and  which  should  equally  apprise  neutral  nations  of  the 
fact,  to  enable  them  to  conform  their  conduct  to  the  rights  belonging  to  the 
new  state  of  things."  "  Such  an  official  act  operates  from  its  date  to 
legalize  all  hostile  acts,  in  like  manner  as  a  treaty  of  peace  operates  from 
its  date  to  annul  them."  He  further  observes,  "  As  a  war  cannot  lawfully 
be  commenced  on  the  part  of  the  United  States  without  an  act  of  Congress, 
such  act  is,  of  course,  a  formal  notice  to  all  the  world,  and  equivalent  to 
the  most  solemn  declaration." 

The  legal  consequences  resulting  from  a  state  of  war  between  two  coun 
tries  at  this  day  are  well  understood,  and  will  be  found  described  in  every 
approved  work  on  the  subject  of  international  law.  The  people  of  the  two 
countries  become  immediately  the  enemies  of  each  other  —  all  intercourse, 
commercial  or  otherwise,  between  them  unlawful  —  all  contracts  existing  at 
the  commencement  of  the  war  suspended,  and  all  made  during  its  existence 
utterly  void.  The  insurance  of  enemies'  property,  the  drawing  of  bills  of 
exchange  or  purchase  on  the  enemies'  country,  the  remission  of  bills  or 
money  to  it,  are  illegal  and  void.  Existing  partnerships  between  citizens  or 
subjects,  of  the  two  countries  are  dissolved,  and,  in  fine,  interdiction  of 
trade  and  intercourse,  direct  or  indirect,  is  absolute  and  complete  by  the 
mere  force  and  effect  of  war  itself.  All  the  property  of  the  people  of  the 
two  countries  on  land  or  sea  are  subject  to  capture  and  confiscation  by  the 
adverse  party  as  enemies'  property,  M'ith  certain  qualifications  as  it  respects 
property  on  land  (Brown  vs.  United  States,  8  Cranch,  110),  all  treaties 
between  the  belligerent  parties  are  annulled.  The  ports  of  the  respective 
countries  may  be  blockaded,  and  letters  of  marque  and  reprisal  geanted  as 
rights  of  war,  and  the  law  of  prizes,  as  defined  by  the  law  of  nations,  comes 
into  full  and  complete  operation,  resulting  from  maritime  captures,  jure 
belli.  War  also  effects  a  change  in  the  mutual  relations  of  all  states  or 
countries,  not  directly,  as  in  the  case  of  the  belligerents,  but  immediately 
and  indirectly,  though  they  take  no  part  in  the  contest,  but  remain 
neutral. 

This  great  and  pervading  change  in  the  existing  condition  of  a  country, 
and  in  the  relations  of  all  her  citizens  or  subjects,  external  and  internal, 
from  a  state  of  peace,  is  the  immediate  effect  and  result  of  a  state  of  \\ar: 
and  hence  the  same  code,  which  has  annexed  to  the  existence  of  a  war  all 
these  disturbing  consequences,  has  declared  that  the  right  of  making  war 
belongs  exclusively  to  the  supreme  or  sovereign  power  of  the  state. 

This  power,  in  all  civilized  nations,  is  regulated  by  the  fundamental  laws 
or  municipal  constitution  of  the  country. 

By  our  Constitution  this  power  is  lodged  in  Congress.  Congress  shall 
have  power  "  to  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water." 

We  have  thus  far  been  considering  the  status  of  the  citizens  or  subjects 
of  a  country  at  the  breaking  out  of  a  public  war,  when  recognized  or 
declared  by  the  competent  power. 


150  NOTES. 

In  the  case  of  a  rebellion,  or  resistance  of  a  portion  of  the  people  of  a 
country  against  the  established  government,  there  is  no  doubt,  if  in  its  prog 
ress  and  enlargement  the  government  thus  sought  to  be  overthrown  sees 
fit,  it  may,  by  the  competent  power,  recognize  or  declare  the  existence  of  a 
state  of  civil  w:ar,  which  will  draw  after  it  all  the  consequences  and  rights 
of  war  between  the  contending  parties  as  in  the  case  of  a  public  war.  Mr. 
Wheaton  observes,  speaking  of  civil  war,  "  But  the  general  usage  of 
nations  regards  such  a  war  as  entitling  both  the  contending  parties  to  all 
the  rights  of  war  as  against  each  other,  and  even  as  respects  neutral  na 
tions."  It  is  not  to  be  denied,  therefore,  that  if  a  civil  war  existed  between 
that  portion  of  the  people  in  organized  insurrection  to  overthrow  this 
government  at  the  time  this  vessel  and  cargo  were  seized,  and  if  she  was 
guilty  of  a  violation  of  the  blockade,  she  would  be  lawful  prize  of  war. 
But  before  this  insurrection  against  the  established  government  can  be 
dealt  with  on  the  footing  of  a  civil  war,  within  the  meaning  of  the  law  of 
nations  and  the  Constitution  of  the  United  States,  and  which  will  draw  after 
it  belligerent  rights,  it  must  be  recognized  or  declared  by  the  war-making 
power  of  the  government.  No  power  short  of  this  can  change  the  legal 
status  of  the  government  or  the  relations  of  its  citizens  from  that  of  peace 
to  a  state  of  war,  or  bring  into  existence  all  those  duties  and  obligations 
of  neutral  third  parties  growing  out  of  a  state  of  war.  The  war  power  of 
the  government  must  be  exercised  before  this  changed  condition  of  the 
government  and  people  and  of  neutral  third  parties  can  be  admitted. 
There  is  no  difference  in  this  respect  between  a  civil  or  a  public  war. 

We  have  been  more  particular  upon  this  branch  of  the  case  than  would 
seem  to  be  required  on  account  of  any  doubt  or  difficulties  attending  the 
subject,  in  view  of  the  approved  works  upon  the  law  of  nations  or  from  the 
adjudication  of  the  courts,  but,  because  some  confusion  existed  on  the 
argument  as  to  the  definition  of  a  war  that  drew  after  it  all  the  rights  of 
prize  of  war.  Indeed,  a  great  portion  of  the  argument  proceeded  upon  the 
ground  that  these  rights  could  be  called  into  operation,  enemies'  property 
captured,  blockades  set  on  foot,  and  all  the  rights  of  war  enforced  in  prize 
courts,  by  a  species  of  war  unknown  to  the  law  of  nations  and  to  the  Con 
stitution  of  the  United  States. 

An  idea  seemed  to  be  entertained  that  all  that  was  necessary  to  constitute 
a  war,  was  organized  hostility  in  the  district  of  country  in  a  state  of  rebel 
lion  ;  that  conflicts  on  land  and  on  sea,  the  taking  of  towns  and  capture 
of  fleets,  in  fine,  the  magnitude  and  dimensions  of  the  resistance  against 
the  government,  constituted  war,  with  all  the  belligerent  rights  belonging 
to  civil  war.  With  a  view  to  enforce  this  idea,  we  had,  during  the  argu 
ment,  an  imposing  historical  detail  of  the  several  measures  adopted  by  the 
Confederate  States  to  enable  them  to  resist  the  authority  of  the  general 
government,  and  of  many  bold  and  daring  acts  of  resistance  and  of  con 
flict.  It  was  said  that  war  was  to  be  ascertained  by  looking  at  the  armies 
and  navies  or  public  force  of  the  contending  parties,  and  the  battles  lost 
and  won ;  that  in  the  language  of  one  of  the  learned  counsel,  "  When 
ever  the  situation  of  opposing  hostilities  has  assumed  the  proportions  and 
pursued  the  methods  of  war,  then  peace  is  driven  out,  the  ordinary  authority 
and  administration  of  law  are  suspended,  and  war  in  fact  and  by  necessity 
is  the  status  of  the  nation  until  peace  is  Restored  and  the  laws  resumed  their 
dominion." 

Now,  in  one  sense,  no  doubt  this  is  war,  and  may  be  a  war  of  the  most 
extensive  and  threatening  dimensions  and  effects, 'but  it  is  a  statement 
simply  of  its  existence  in  a  material  sense,  and  has  no  relevancy  or  weight 
when  the  question  is,  what  constitutes  war,  in  a  legal  sense,  in  the  sense  of 


NOTES.  151 

the  law  of  nations,  and  of  the  Constitution  of  the  United  States  ?  For  it 
must  be  a  war  in  this  sense  to  attach  to  it  all  the  consequences  that  belong 
to  belligerent  rights.  Instead;  therefore,  of  inquiring  after  armies  and 
navies,  and  victories  lost  and  won,  or  organized  rebellion  against  the  gener 
al  government,  the  inquiry  should  be  into  the  law  of  nations  and  into  the 
municipal  fundamental  laws  of  the  government.  For  we  find  there,  that  to 
constitute  a  civil  war  in  the  sense  in  which  we  are  speaking,  before  it  can 
exist,  in  contemplation  of  law,  it  must  be  recognized,  or  declared  by  the 
sovereign  power  of  the  state,  and  which  sovereign  powers  by  our  Constitu 
tion  is  lodged  in  the  Congress  of  the  United  States  ;  —  civil  war,  therefore, 
under  our  system  of  government,  can  exist  only  by  an  act  of  Congress, 
which  requires  the  assent  of  two  of  the  great  departments  of  the  govern 
ment,  the  Executive  and  Legislative. 

We  have  thus  far  been  speaking  of  the  war  power  under  the  Constitution 
of  the  United  States,  and  as  known  and  recognized  by  the  law  of  nations. 
But  we  are  asked,  what  would  become  of  the  peace  and  integrity  of  the 
Union  in  case  of  an  insurrection  at  liome  or  invasion  from  abroad  if  this 
power  could  not  be  exercised  by  the  President  in  the  recess  of  Congress, 
and  until  that  body  could  be  assembled  ? 

The  framers  of  the  Constitution  fully  comprehended  this  question,  and 
provided  for  the  contingency.  Indeed,  it  would  have  been  surprising  if 
they  had  not,  as  a  rebellion  had  occurred  in  the  State  of  Massachusetts 
while  the  Convention  was  in  session,  and  which  had  become  so  general  that 
it  was  quelled  only  by  calling  upon  the  military  power  of  the  State.  The 
Constitution  declares  that  Congress  shall  have  power  "  to  provide  for  call 
ing  forth  the  militia  to  execute  the  laws  of  the  Union,  suppress  insurrec 
tions,  and  repel  invasions."  Another  clause,  "  that  the  President  shall  be 
commander-in-chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States  when  called  into  the  actual  service  of  the 
United  States  ;  "  and,  again,  "  he  shall  take  care  that  the  laws  shall  be 
faithfully  executed."  Congress  passed  laws  on  this  subject  in  1792  and 
1795.  1  United  States  Laws,  pp.  264,  424. 

The  last  Act  provided  that  whenever  the  United  States  shall  be  invaded, 
or  be  in  imminent  danger  of  invasion  from  a  foreign  nation,  it  shall  be 
lawful  for  the  President  to  call  forth  such  number  of  militia  most  conve 
nient  to  the  place  of  danger,  and  in  case  of  insurrection  in  any  State  against 
the  government,  thereof,  it  shall  be  lawful  for  the  President,  on  the  applica 
tion  of  the  Legislature  of  such  State,  if  in  session,  or  if  not,  of  the  Execu 
tive  of  the  State,  to  call  forth  such  number  of  militia  of  any  other  State  or 
States  as  he  may  judge  sufficient  to  suppress  such  insurrection. 

The  2d  section  provides,  that  when  the  laws  of  the  United  States  shall 
be  opposed,  or  the  execution  obstructed  in  any  State  by  combinations  too 
powerful  to  be  suppressed  by  the  course  of  judicial  proceedings,  it  shall  be 
lawful  for  the  President  to  call  forth  the  militia  of  such  State,  or  of  any 
other  State  or  States  as  may  be  necessary  to  suppress  such  combinations  • 
and  by  the  Act  3  March,  1807  (2  U.  S.  Laws,  443),  it  is  provided  tha; 
in  case  of  insurrection  or  obstruction  of  the  laws,  either  in  the  United 
States  or  of  any  State  or  Territory,  where  it  is  lawful  for  the  President  to 
call  forth  the  militia  for  the  purpose  of  suppressing  such  insurrection,  and 
causing  the  laws  to  be  executed,  it  shall  be  lawful  to  employ  for  the  same 
purpose  such  part  of  the  land  and  naval  forces  of  the  United  States  as 
shall  be  judged  necessary. 

It  will  be  seen,  therefore,  that  ample  provision  has  been  made  under  the 
Constitution  and  laws  against  any  sudden  and  unexpected  disturbance  of 
th?  public  peace  from  insurrection  at  home  or  invasion  from  abroad.  The 


152  NOTES. 

whole  military  and  naval  power  of  the  country  is  put  under  the  control  of 
the  President  to  meet  the  emergency.  He  may  call  out  a  force  in  propor 
tion  to  its  necessities,  one  regiment  or  fifty,  one  ship  of  war,  or  any  number 
at  his  discretion.  If,  like  the  insurrection  in  the  State  of  Pennsylvania  in 
1793,  the  disturbance  is  confined  to  a  small  district  of  country,  a  few  regi 
ments  of  the  militia  may  be  sufficient  to  suppress  it.  If  of  the  dimension 
of  the  present,  when  it  first  broke  out,  a  much  larger  force  would  be 
required.  But  whatever  its  numbers,  whether  great  or  small,  that  may  be 
required,  ample  provision  is  here  made ;  and  whether  great  or  small,  the 
nature  of  the  power  is  the  same.  It  is  the  exercise  of  a  power  under  the 
municipal  laws  of  the  country  and  not  under  the  law  of  nations  ;  and,  as 
we  see,  furnishes  the  most  ample  means  of  repelling  attacks  from  abroad 
or  suppressing  disturbances  at  home  until  the  assembling  of  Congress,  who 
can,  if  it  be  deemed  necessary,  bring  into  operation  the  war  power,  and 
thus  change  the  nature  and  character  of  the  contest.  Then,  instead  of 
being  carried  on  under  the  municipal  law  of  1795,  it  would  be  under  the 
law  of  nations,  and  the  Acts  of  Congress  as  war  measures,  with  all  the  rights 
of  war. 

It  has  been  argued  that  the  authority  conferred  on  the  President  by  the 
Act  of  1795  invests  him  with  the  war  power.  But  the  obvious  answer  is, 
that  it  proceeds  from  a  different  clause  in  the  Constitution,  and  which  is 
given  for  different  purposes  and  objects,  namely,  to  execute  the  laws  and 
preserve  the  public  order  and  tranquillity  of  the  country  in  a  time  of  peace 
by  preventing  or  suppressing  any  public  disorder  or  disturbance  by  foreign 
or  domestic  enemies.  Certainly,  if  there  is  any  force  in  this  argument, 
then  we  are  in  a  state  of  war  with  all  the  rights  of  war,  and  all  the  penal 
consequences  attending  it  every  time  this  power  is  exercised  by  calling  out 
a  military  force  to  execute  the  laws  or  to  suppress  insurrection  or  rebellion ; 
for  the  nature  of  the  power,tcannot  depend  upon  the  numbers  called  out. 
If  so,  what  numbers  will  constitute  war  and  what  numbers  will  not  ?  It 
has  also  been  argued  that  this  power  of  the  President  from  necessity  should 
be  construed  as  vesting  him  with  the  war  power,  or  the  Republic  might 
greatly  suffer  or  be  in  danger  from  the  attacks  of  the  hostile  party  before 
the  assembling  of  Congress.  But  we  have  seen  that  the  whole  military  and 
naval  force  are  in  his  hands  under  the  municipal  laws  of  the  country.  He 
can  meet  the  adversary  upon  land  and  water  with  all  the  forces  of  the 
government.  The  truth  is,  this  idea  of  the  existence  of  any  necessity  for 
clothing  the  President  with  the  war  power,  under  the  Act  of  1795,  is  sim 
ply  a  monstrous  exaggeration  ;  for,  besides  having  the  command  of  the  whole 
of  the  army  and  navy,  Congress  can  be  assembled  within  any  thirty  days, 
if  the  safety  of  the  country  requires  that  the  Avar  power  shall  be  brought 
into  operation. 

The  Acts  of  1795  and  1807  did  not,  and  could  not  under  the  Constitution, 
confer  on  the  President  the  power  of  declaring  war  against  a  State  of  this 
Union,  or  of  deciding  that  war  existed,  and  upon  that  ground  authorize 
the  capture  and  confiscation  of  the  property  of  every  citizen  of  the  State 
whenever  it  was  found  on  the  waters.  The  laws  of  war,  whether  the  war 
be  civil  or  inter  gentcs,  as  we  have  seen,  convert  every  citizen  of  the  hostile 
State  into  a  public  enemy,  and  treat  him  accordingly,  whatever  may  have 
been  his  previous  conduct.  This  great  power  over  the  business  and  prop 
erty  of  the  citizen  is  reserved  to  the  legislative  department  by  the  express 
words  of  the  Constitution.  It  cannot  be  delegated  or  surrendered  to  the 
Executive.  Congress  alone  can  determine  whether  war  exists  or  should  be 
declared  ;  and  until  they  have  acted,  no  citizen  of  the  State  can  be  punished 
in  his  person  or  property,  unless  he  has  committed  some  offence  against  a 


NOTES.  153 

law  of  Congress  passed  before  the  act  was  committed,  which  made  it  a 
crime,  and  defined  the  punishment.  The  penalty  of  confiscation  for  the  acts 
of  others  with  which  he  had  no  concern  cannot  lawfully  be  inflicted. 

In  the  breaking  out  of  a  rebellion  against  the  established  government, 
the  usage  in  all  civilized  countries,  in  its  first  stages,  is  to  suppress  it  by 
confining  the  public  forces  and  the  operations  of  the  government  against 
those  in  rebellion,  and  at  the  same  time  extending  encouragement  and  sup 
port  to  the  loyal  people  with  a  view  to  their  cooperation  in  putting  down 
the  insurgents.  This  course  is  not  only  the  dictate  of  wisdom,  but  of  jus 
tice.  This  was  the  practice  of  England  in  Monmouth's  rebellion  in  the 
reign  of  James  the  Second,  and  in  the  rebellions  of  1715  and  1745,  by  the 
Pretender  and  his  son,  and  also  in  the  beginning  of  the  rebellion  of  the 
Thirteen  Colonies  of  1776.  It  is  a  personal  war  against  the  individuals 
engaged  in  resisting  the  authority  of  the  government.  This  was  the  char 
acter  of  the  war  of  our  Revolution  till  the  passage  of  the  Act  of  the  Par 
liament  of  Great  Britain  of  the  16th  of  George  Third,  1776.  By  that  act 
all  trade  and  commerce  with  the  Thirteen  Colonies  was  interdicted,  and  all 
ships  and  cargoes  belonging  to  the  inhabitants  subjected  to  forfeiture,  as  if 
the  same  were  the  ships  and  effects  of  open  enemies.  From  this  time  the 
war  became  a  territorial  civil  war  between  the  contending  parties,  with  all 
the  rights  of  war  known  to  the  law  of  nations.  Down  to  this  period  the 
war  was  personal  against  the  rebels,  and  encouragement  and  support  con 
stantly  extended  to  the  loyal  subjects  who  adhered  to  their  allegiance,  and 
although  the  power  to  make  war  existed  exclusively  in  the  King,  and  of 
course  this  personal  war  carried  on  under  his  authority,  and  a  partial  exer 
cise  of  the  war  power,  no  captures  of  the  ships  or  cargo  of  the  rebels  as 
enemies'  property  on  the  sea,  or  confiscation  in  Prize  Courts  as  rights  of 
war,  took  place  until  after  the  passage  of  the  Act  of  Parliament.  Until 
the  passage  of  the  act  the  American  subjects  were  not  regarded  as  enemies 
in  the  sense  of  the  law  of  nations.  The  distinction  between  the  loyal  and 
rebel  subjects  was  constantly  observed.  That  act  provided  for  the  capture 
and  confiscation  as  prize  of  their  property  as  if  the  same  were  the  property 
"  of  open  enemies."  For  the  first  time  the  distinction  was  obliterated. 

So  the  war  carried  on  by  the  President  against  the  insurrectionary  dis 
tricts  in  the  Southern  States,  as  in  the  case  of  the  King  of  Great  Britain  in 
the  American  Revolution,  was  a  personal  war  against  those  in  rebellion, 
and  with  encouragement  and  support  of  loyal  citizens  with  a  view  to  their 
cooperation  and  aid  in  suppressing  the  insurgents,  with  this  difference,  as 
the  war-making  power  belonged  to  the  King,  he  might  have  recognized  or 
declared  the  war  at  the  beginning  to  be  a  civil  war,  which  would  draw  after 
it  all  the  rights  of  a  belligerent,  but  in  the  case  of  the  President  no  such 
power  existed ;  the  war  therefore  from  necessity  Avas  a  personal  war,  until 
Congress  assembled  and  acted  upon  this  state  of  things. 

Down  to  this  period  the  only  enemy  recognized  by  the  government  was 
the  persons  engaged  in  the  rebellion  ;  all  others  were  peaceful  citizens, 
entitled  to  all  the  privileges  of  citizens  under  the  Constitution.  Certainly  it 
cannot  rightfully  be  said  that  the  President  has  the  power  to  convert  a  loyal 
citizen  into  a  belligerent  enemy,  or  confiscate  his  property  as  enemy's 
property. 

Congress  assembled  on  the  call  for  an  extra  session  the  4th  of  July,  1861, 
and  among  the  first  acts  passed  was  one  in  which  the  President  was  author 
ized  by  proclamation  to  interdict  all  trade  and  intercourse  between  all  the 
inhabitants  of  States  in  insurrection,  and  the  rest  of  the  United  States,  sub 
jecting  vessel  and  cargo  to  capture  and  condemnation  as  prize,  and  also  to 
direct  the  capture  of  any  ship  or  vessel  belonging  in  whole  or  in  part  to 

20 


154  NOTES. 

any  inhabitant  of  a  State  whose  inhabitants  are  declared  by  the  proclama 
tion  to  be  in  a  state  of  insurrection,  found  at  sea  or  in  any  part  of  the  rest 
of  the  United  States.  Act  of  Congress  of  13th  of  July,  1861,  sees.  5,  6. 
The  4th  section  also  authorized  the  President  to  close  any  port  in  a  Collec 
tion  District  obstructed  so  that  the  revenue  could  not  be  collected,  and  provid 
ed  for  the  capture  and  condemnation  of  any  vessel  attempting  to  enter. 

The  President's  Proclamation  was  issued  on  the  16th  of  August  follow 
ing,  and  embraced  Georgia,  North  and  South  Carolina,  part  of  Virginia, 
Tennessee,  Alabama,  Louisiana,  Texas,  Arkansas,  Mississippi,  and  Florida. 

This  Act  of  Congress,  we  think,  recognized  a  state  of  civil  war  between 
the  government  and  the  Confederate  States,  and  made  it  territorial.  The 
Act  of  Parliament  of  1776,  which  converted  the  rebellion  of  the  Colonies 
into  a  civil  territorial  war,  resembles,  in  its  leading  features,  the  act  to 
which  we  have  referred.  Government,  in  recognizing  or  declaring  the 
existence  of  a  civil  war  between  itself  and  a  portion  of  the  people  in  insur 
rection,  usually  modifies  its  effects  with  a  view,  as  far  as  practicable,  to  favor 
the  innocent  and  loyal  citizens  or  subjects  involved  in  the  war.  It  is  only 
the  urgent  necessities  of  the  government,  arising  from  the  magnitude  of  the 
resistance,  that  can  excuse  the  conversion  of  the  personal  into  a  territorial 
war,  and  thus  confound  all  distinction  between  guilt  and  innocence ; 
hence  the  modification  in  the  Act  of  Parliament  declaring  the  territorial 
war. 

It  is  found  in  the  44th  section  of  the  Act,  which,  for  the  encouragement 
of  well  affected  persons,  and  to  afford  speedy  protection  to  those  desirous 
of  returning  to  their  allegiance,  provided  for  declaring  such  inhabitants  of 
any  colony,  county,  town,  port,  or  place,  at  peace  with  his  majesty,  and 
after  such  notice  by  proclamation  there  should  be  no  further  captures.  The 
Act  of  13th  of  July  provides  that  the  President  may,  in  his  discretion,  per 
mit  commercial  intercourse  with  any  such  part  of  a  State  or  section,  the  in 
habitants  of  which  are  declared  to  be  in  a  state  of  insurrection  (§  5), 
obviously  intending  to  favor  loyal  citizens,  and  encourage  others  to  return 
to  their  loyalty.  And  the  8th  'section  provides  that  the  Secretary  of  the 
Treasury  may  mitigate  or  remit  the  forfeitures  and  penalties  incurred  under 
the  act.  The  Act  of  31st  July  is  also  one  of  a  kindred  character.  That 
appropriates  $2,000,000  to  be  expended  under  the  authority  of  the  Presi 
dent  in  supplying  and  delivering  arms  and  munitions  of  war  to  loyal 
citizens  residing  in  any  of  the  States  of  which  the  inhabitants  are  in  rebel 
lion,  or  in  which  it  may  be  threatened.  We  agree,  therefore,  that  the  Act 
13th  July,  1861,  recognized  a  state  of  civil  war  between  the  government 
and  the  people  of  the  States  described  in  that  proclamation. 

The  cases  of  the  United  States  vs.  Palmer  (3  Wh.  610) ;  Divina 
Pastora,  and  4  Ibid,  52,  and  that  class  of  cases  to  be  found  in  the  reports 
are  referred  to  as  furnishing  authority  for  the  exercise  of  the  war  power 
claimed  for  the  President  in  the  present  case.  These  cases  hold  that  when 
the  government  of  the  United  States  recognizes  a  state  of  civil  war  to 
exist  between  a  foreign  nation  and  her  colonies,  but  remaining  itself 
neutral,  the  courts  are  bound  to  consider  as  lawful  all  those  acts  which  the 
new  government  may  direct  against  the  enemy ;  and  we  admit  the  President, 
who  conducts  the  foreign  relations  of  the  government,  may  fitly  recognize, 
or  refuse  to  do  so,  the  existence  of  civil  war  in  the  foreign  nation  under  the 
circumstances  stated. 

But  this  is  a  very  different  question  from  the  one  before  us,  which  is, 
whether  the  President  can  recognize  or  declare  a  civil  war,  under  the  Con 
stitution,  with  all  its  belligerent  rights,  between  his  own  government  and  a 
portion  of  its  citizens  in  a  state  of  insurrection.  That  power,  as  we  have 
seen,  belongs  to  Congress.  We  agree,  when  such  a  war  is  recognized  or 


NOTES.  155 

declared  to  exist  by  the  war-making  power,  but  not  otherwise,  it  is  the  duty 
of  the  courts  to  follow  the  decision  of  the  political  power  of  the  govern 
ment. 

The  case  of  Luther  vs.  Sorden,  et  al.  (7  How.,  45),  which  arose  out  of 
the  attempt  of  an  assumed  new  government  in  the  State  to  overthrow  the 
old  and  established  government  of  Rhode  Island  by  arms.  The  Legislature 
of  the  old  government  had  established  martial  law,  and  the  Chief  Justice,  in 
delivering  the  opinion  of  the  court,  observed,  among  other  things,  that  "  if 
the  government  of  Rhode  Island  deemed  the  armed  opposition  so  formida 
ble  and  so  ramified  throughout  the  State  as  to  require  the  use  of  its  military 
force,  and  the  declaration  of  martial  law,  we  see  no  ground  upon  which  this 
court  can  question  its  authority.  It  was  a  state  of  war,  and  the  established 
government  resorted  to  the  rights  and  usages  of  war  to  maintain  itself  and 
overcome  the  unlawful  opposition." 

But  it  is  only  necessary  to  say,  that  the  term  "  war  "  must  necessarily 
have  been  used  here  by  the  Chief  Justice  in  its  popular  sense,  and  not  as 
known  to  the  law  of  nations,  as  the  State  of  Rhode  Island  confessedly  pos 
sessed  no  power  under  the  Federal  Constitution  to  declare  war. 

Congress,  on  the  6th  of  August,  1862,  passed  an  Act  confirming  all  acts, 
proclamations,  and  orders  of  the  President,  after  the  4th  of  March,  1861, 
respecting  the  army  and  navy,  and  legalizing  them,  so  far  as  was  competent 
for  that  body,  and  it  has  been  suggested,  but  scarcely  argued,  that  this 
legislation  on  the  subject  had  the  effect  to  bring  into  existence  an  ex  post 
facto  civil  war,  with  all  the  rights  of  capture  and  confiscation,  jure  belli, 
from  the  date  referred  to.  An  ex  pos,t  facto  law  is  defined,  when,  after  an 
action,  indifferent  in  itself,  or  lawful,  is  committed,  the  Legislature  then,  for 
the  first  time,  declares  it  to  have  been  a  crime,  and  inflicts  punishment  upon 
the  person  who  committed  it.  The  principle  is  sought  to  be  applied  in  this 
case.  Property  of  the  citizen  or  foreign  subject  engaged  in  lawful  trade  at 
the  time,  and  illegally  captured,  which  must  be  taken  as  true  if  a  confirma 
tory  act  be  necessary,  may  be  held  and  confiscated  by  subsequent  legislation. 
In  other  words  trade  and  commerce  authorized  at  the  time  by  acts  of  Con 
gress  and  treaties,  may,  by  ex  post  facto  legislation,  be  changed  into  illicit 
trade  and  commerce  with  all  its  penalties  and  forfeitures  annexed  and 
enforced.  The  instance  of  the  seizure  of  the  Dutch  ships  in  1803  by  Great 
Britain  before  the  war,  and  confiscation  after  the  declaration  of  war,  which 
is  well  known,  is  referred  to  as  an  authority.  But  there  the  ships  were 
seized  by  the  war  power,  the  orders  of  the  government,  the  seizure  being  a 
partial  exercise  of  that  power,  and  which  was  soon  after  exercised  in  full. 

The  precedent  is  one  which  has  not  received  the  approbation  of  jurists, 
and  is  not  to  be  followed.  See  W.  B.  Lawrence,  2d  ed.  Wheaton's  Element 
of  Int.  Law,  pt.  4,  ch.  1,  sec.  11,  and  note.  But,  admitting  its  full  weight, 
it  affords  no  authority  in  the  present  case.  Here  the  captures  were  without 
any  constitutional  authority,  and  void;  and,  on  principle,  no  subsequent 
ratification  could  make  them  valid. 

Upon  the  whole,  after  the  most  careful  consideration  of  this  case  which 
the  pressure  of  other  duties  has  admitted,  I  am  compelled  to  the  conclusion 
that  no  civil  war  existed  between  this  government  and  the  States  in  insur 
rection  till  recognized  by  the  Act  of  Congress  13th  of  July,  1861  ;  that  the 
President  does  not  possess  the  power  under  the  Constitution  to  declare  ^yar 
or  recognize  its  existence  within  the  meaning  of  the  law  of  nations,  which 
carries  with  it  belligerent  rights,  and  thus  change  the  country  and  all  its 
citizens  from  a  state  of  peace  to  a  state  of  war  ;  that  this  power  belongs 
exclusively  to  the  Congress  of  the  United  States,  and,  consequently,  that 
the  President  had  no  power  to  set  on  foot  a  blockade  under  the  law  of 
nations,  and  that  the  capture  of  the  vessel  and  cargo  in  this  case,  and  in  all 


156  NOTES. 

cases  before  us  in  which  the  capture  occurred  before  the  13th  of  July,  1861, 
for  breach  of  blockade,  or  as  enemies'  property,  are  illegal  and  void,  and 
that  the  decrees  of  condemnation  should  be  reversed  and  the  vessel  and 
cargo  restored. 

Mr.  Chief  Justice  TANEY,  Mr.  Justice  CATRON,  and  Mr.  Justice 
CLIFFORD,  concurred  in  the  Dissenting  Opinion  of  Mr.  Justice  NELSON. 

From  the  foregoing  opinion  of  the  judges  who  dissented  from  the  opin 
ion  of  the  majority  of  the  Court,  it  will  be  seen  that  the  Court  were  unani 
mous  on  several  great  questions  treated  of  in  the  preceding  work.  The 
judges  all  agree  in  considering  a  civil  war  (with  all  the  consequences  to  the 
residents  of  the  seceding  States  of  &  public  territorial  war)  to  have  existed 
since  the  act  of  July  IWi,  1861,  and  still  to  exist.  The  question  on  which 
the  judges  differed  was,  whether  the  rebellion  was  or  was  not  a  civil  terri 
torial  war  prior  to  this  Act  of  Congress. 

Among  the  points  thus  authoritatively  settled  by  agreement  of  all  the 
judges,  are  these  :  — 

1.  Since  July  13th,   1861,  there  has  existed  betAveen  the  United  States 
and  the  Confederate  States  a  civil,  territorial  war. 

2.  That  the  United  States,  since  that  time,  have  full  belligerent  rights 
against  all  persons  residing  in  the  rebellious  districts. 

3.  That  whether  the  inhabitants  of  the  rebellious  districts  are  guilty  or 
innocent,  loyal  or  disloyal,  such  persons  are,  in  the  eye  of  the  law,  belliger 
ent  enemies,  and  they  and  their  property  are  subject  to  the  laws  of  war. 
"  The  laws  of  war,  whether  the  war  be  civil  or  inter  gentes.  converts  every 
citizen  of  the  hostile  State  into  a  public  enemy,  and  treats  him  accordingly, 
whatever  may  have  been  his  previous  conduct." 

4.  All  the  rights  of  war  now  may  be  lawfully  and  constitutionally  exercised 
against  all  the  inhabitants  of  the  seceded  States. 

The  following  extract  from  the  same  opinion  shows  what  some  of  these 
belligerent  rights  are  :  — 

"  The  legal  consequences  resulting  from  a  state  of  war  between  two 
countries,  at  this  day,  are  well  understood,  and  will  be  found  described  in 
every  approved  work  on  the  subject  of  international  law.  The  people  of 
the  two  countries  immediately  become  enemies  of  each  other  ;  all  inter 
course,  commercial  or  othencise,  between  them  unlawful ;  all  contracts 
existing  at  the  commencement  of  the  war  suspended,  and  "all  made  during  its 
existence  utterly  void.  The  insurance  of  enemies'  property,  the  drawing  of 
bills  of  exchange  or  purchase  in  the  enemy's  country,  the  remission  of  bills 
or  money  to  it,  are  illegal  and  void.  Existing  partnerships  between  citizens 
or  subjects  of  the  two  countries  are  dissolved,  and  in  fine,  interdiction  of 
trade  and  intercourse,  direct  or  indirect,  is  absolute  and  complete  by  the 
mere  force  and  effect  of  war  itself.  All  the  property  of  the  people  of  the 
two  countries,  on  land  or  sea,  is  subject  to  capture  and  confiscation  by  the 
adverse  party,  as  enemies'  property,  with  certain  qualifications  as  it  respects 
property  on  land.  (8  Cranch,  110,  Brown  vs.  United  States.}  All  treaties 
between  the  belligerent  parties  are  annulled.  The  ports  of  the  respective 
countaies  may  be  blockaded,  and  letters  of  marque  and  reprisal  granted 
as  rights  of  war,  and  the  law  of  prize,  as  defined  by  the  law  of  nations, 
comes  into  full  and  complete  operation,  resulting  from  maritime  captures 
"'ure  belli.  War  also  effects  a  change  in  the  mutual  relations  of  all  States 
or  countries,  not  directly,  as  in  case  of  belligerents,  but  immediately  and 
indirectly,  though  they  take  no  part  in  the  contest,  but  remain  neutral. 

"  The  great  and  pervading  change  in  the  condition  of  a  country,  and  in 
the  relations  of  all  her  citizens  and  subjects,  external  and  internal,  from  a 
state  of  peace,  is  the  immediate  effect  and  result  of  a  state  of  war." 


MILITARY  ARRESTS 


IN 


TIME     OF    WAR. 


PREFACE   TO    MILITARY    ARRESTS. 


In  November,  1862,  when  the  author  was  first  requested  by  the 
Government  to  act  as  Solicitor  and  special  counsel  of  the  War  Depart 
ment,  civil  suits  and  criminal  prosecutions  were  pending  against  mil 
itary  officers  and  other  persons  who,  acting  under  orders  of  the  War 
Department,  had  arrested  and  detained  in  custody  citizens  of  the 
United  States,  and  aliens.  It  was  a  part  of  the  duty  assigned  to  him 
to  instruct  counsel  employed  in  different  parts  of  the  country  for  the 
defence  of  those  who  had  been  wrongfully  subjected  to  such  proceed 
ings  by  reason  of  their  obedience  to  orders.  As  time  advanced,  suits 
and  prosecutions  multiplied,  involving  men  in  high  position.  Treason 
reared  its  head  in  many  shapes  and  in  many  places  in  the  Northern 
States.  Attempts  were  constantly  made  to  bring  the  judicial  power 
of  individual  States  into  collision  with  the  military  forces  of  the 
Union. 

In  all  such  cases,  it  was  essential  to  preserve  the  power  and  dignity 
of  the  General  Government  unimpaired,  and  at  the  same  time  to  avoid 
open  rupture  with  the  courts ;  hence  it  was  desirable  to  meet  and  foil 
the  secret  enemies  of  their  country  by  the  use  of  judicial  weapons. 
The  stern  demands  of  military  necessity  were  to  be  reconciled  with  the 
maintenance  of  civil  liberty,  and  with  the  preservation  of  local  self- 
government.  It  became  necessary  to  show  that  when,  in  time  of  war, 
the  life  of  the  body  politic  was  in  danger,  the  surgeon's  knife  was  the 
only  instrument  by  which  that  life  could  be  saved. 

The  judicial  mind  was  then  far  from  comprehending  either  the 
perilous  condition  of  public  affairs,  the  change  wrought  by  civil  war  in 
the  rights,  powers,  and  duties  of  the  bench,  or  the  danger  of  destroying 
the  government  itself  by  collision  between  its  Political  and  Judicial 
Departments.  The  powers  of  war,  the  rights  of  war,  and  the  courts  of 
war,  seemed  equally  strange  and  alarming ;  and  it  is  a  gratifying  proof 
of  the  learning  and  wisdom  of  the  bench,  of  the  bar,  and  of  Con 
gress,  that  recognition  and  sanction  of  doctrines  of  constitutional  law, 

159 


1GO  PREFACE    TO    MILITARY    ARRESTS. 

which  two  years  ago  were  confined  to  a  few  individuals,  have  now 
become  so  general  among  our  most  eminent  judges,  lawyers,  and  legis 
lators. 

The  following  pages  on  Military  Arrests  were  written  in  the  winter 
and  spring  of  1862-8,  in  order  to  express,  in  a  form  convenient  for 
transmission  to  counsel  acting  under  his  instructions,  the  views  of  the 
author  on  the  general  legal  principles  on  which  military  arrests  are 
justifiable  and  defensible.  They  contain  in  more  extended  form  the 
same  doctrines  of  constitutional  law  expressed  in  the  WAR  POWERS, 
page  83  ;  and  were  originally  published  and  distributed  by  order  of 
the  Secretary  of  War. 

w.  w 

WAR  DEPARTMENT, 
WASHINGTON,  June  30,  1864. 


MILITARY    ARRESTS. 


THE  people  of  the  United  States,  having  made  great 
sacrifices  to  secure  and  perpetuate  the  blessings  of  civil 
liberty,  demand,  in  time  of  peace,  protection  and  se 
curity  in  the  enjoyment  of  all  rights  guaranteed  to 
them  by  the  Constitution.  But  civil  war  has  com 
pelled  the  government  to  use  its  war  powers  of  seizing 
property  and  of  capturing  persons  by  military  authority. 
Such  seizures  and  captures  have  been  regarded  as  a 
wrongful  use  of  arbitrary  power,  and  have,  therefore, 
been  looked  upon  with  alarm.  For  this  reason  loyal 
citizens  have,  in  some  instances,  made  the  mistake 
of  setting  up  unjustifiable  claims  in  behalf  of  public 
enemies,  asserting  for  them  the  privilege  of  freedom 
from  military  arrest,  or  of  discharge  from  imprison 
ment,  and  have  thus,  unintentionally,  aided  the  rebel 
lion  by  striving  to  prevent  our  military  forces  from 
temporarily  restraining  persons  acting  in  open  hostility 
against  them.  A  careful  examination  of  the  powers 
and  duties  of  the  government  will  show  that  arrests  of 
persons  and  seizures  of  property  may  be  made  by  mili 
tary  authority,  in  time  of  rebellion,  without  destroying 
our  liberty  or  violating  the  Constitution  ;  and  that  we 
need  not  overstate  the  claims  of  traitors  in  order  to  se 
cure  the  rights  of  citizens. 

21  1G1 


162  MILITARY    ARRESTS    IN    TIME    OF   WAR. 


CIVIL  WAR  CHANGES   OUR  LIBERTIES. 

In  time  of  civil  war  every  citizen  must  needs  be  cur 
tailed  of  some  of  his  accustomed  privileges.  Soldiers 
and  sailors  give  up  much  of  their  personal  liberty  by 
ren'dering  themselves  liable  to  obey  the  orders  of  their 
commanding  officers.  All  subjects  of  our  government 
capable  of  bearing  arms  may  be  enrolled  in  the  forces 
of  the  United  States,  and  are  liable  to  be  made  sol 
diers.  Our  property  is  liable  to  be  diminished  by  unu 
sual  taxes,  or  wholly  appropriated  to  public  use,  or  de 
stroyed  on  the  approach  of  an  enemy.  Trade  and 
commercial  intercourse  with  our  adversaries  are  no 
longer  lawful.  Civil,  municipal,  constitutional  and  in 
ternational  rights  are  all  affected  by  the  existence  of 
civil  war.  Shall  those  who  are  disloyal  or  hostile  to  the 
Union  complain  that  their  privileges  are  also  modified 
in  order  to  protect  the  country  from  their  own  miscon 
duct? 

Some  reference  to  the  general  war  powers  of  the 
President  being  essential  to  an  explanation  of  the  sub 
ject  of  military  arrests,  it  has  been  found  most  conven 
ient  to  repeat,  in  this  connection,  the  following  ex 
tracts,  which  may  be  found  in  a  preceding  chapter/11 

GENERAL  WAR  POWERS  OF  THE  PRESIDENT. 

"  It  is  not  intended  (in  this  chapter)  to  explain  the 
general  war  powers  of  the  President.  They  are  prin 
cipally  contained  in  the  Constitution,  Art.  II,  Sect.  1, 
Cl.  1  and  7 ;  Sect.  2,  Cl.  1 ;  Sect.  3,  Cl.  1  ;  and  in  Sect. 
1,  Cl.  1,  and  by  necessary  implication  in  Art.  I.,  Sect.  9 

*  Chapter  III.,  "  War  Powers,"  pp.  82,  83. 


MILITARY   ARRESTS   IN    TIME    OF    WAR. 

Cl.  2.  By  Art.  II.,  Sect.  2,  the  President  is  made  com- 
mander-in-chief  of  the  army  and  navy  of  the  United 
States,  and  of  the  militia  of  the  several  States  when 
called  into  the  service  of  the  United  States.  This 
clause  gives  ample  powers  of  war  to  the  President, 
when  the  army  and  navy  are  lawfully  in  <  actual  ser 
vice.'  His  military  authority  is  supreme,  under  the 
Constitution,  while  governing  and  regulating  the  land 
and  naval  forces,  and  treating  captures  on  land  and 
water  in  accordance  with  such  rules  as  Congress  may 
have  passed  in  pursuance  of  Art.  I,  Sect.  8,  Cl.  11,  14^ 
Congress  may  effectually  control  the  military  power,  i 
by  refusing  to  vote  supplies,  or  to  raise  troops,  and  by  I 
impeachment  of  the  President  •  but  for  the  military  ^ 
movements,  and  measures  essential  to  overcome  the 
enemy  —  for  the  general  conduct  of  the  war — the 
President  is  responsible  to  and  controlled  by  no  other 
department  of  government.  His  duty  is  to  uphold  the  / 
Constitution  and  enforce  the  laws,  and  to  respect  what 
ever,  rights  loyal  citizens  are  entitled  to  enjoy  in  time 
of  civil  war,  to  the  fullest  extent  that  may  be  consistent 
with  the  perf.miicirice  of  the  military  duty  imposed  on 
him.* 

"  What  is  the  extent  of  the  military  power  of  the 
President  over  the  persons  and  property  of  citizens  at 
a  distance  from  the  seat  of  war  —  whether  ho  or  the 
War  Department  may  lawfully  order  the  arrest  of  citi 
zens  in  loyal  States  on  reasonable  proof  that  they  are 
either  enemies  or  aiding  the  enemy ;  or  that  they  are 
spies  or  emissaries  of  rebels  sent  to  gain  information 
for  their  use,  or  to  discourage  enlistments ;  whether 

*  The  effect  of  a  state  of  war,  in  changing  or  modifying-  civil  rights,  is  explained  in  the 
"  War  Powers  of  the  President,"  &c.    See  "  Civil  Eights." 


164  MILITARY   ARRESTS    IN   TLA1E    OF   WAR. 

martial  law  may  be  extended  over  such  places  as  the 
commander  deems  it  necessary  to  guard,  even  though 
distant  from  any  battle-field,  in  order  to  enable  him  to 
prosecute  the  war  effectually ;  whether  the  writ  of 
habeas  corpus  may  be  suspended,  as  to  persons  under 
military  arrest,  by  the  President,  or  only  by  Congress 
(on  which  point  judges  of  the  United  States  courts 
disagree) ;  whether,  in  time  of  war,  all  citizens  are 
liable  to  military  arrest,  on  reasonable  proof  of  their 
aiding  or  abetting  the  enemy,  or  whether  they  are 
entitled  to  practise  treason  until  indicted  by  some 
grand  jury  (thus,  for  example,  whether  Jefferson  Davis, 
or  General  Lee,  if  found  in  Boston,  could  be  arrested 
by  military  authority  and  sent  to  Fort  Warren) ; 
whether,  in  the  midst  of  wide-spread  and  terrific  war, 
those  persons  who  violate  the  laws  of  war  and  the 
laws  of  peace,- traitors,  spies,  emissaries,  brigands,  bush 
whackers,  guerrillas,  persons  in  the  free  States  supply 
ing  arms  and  ammunition  to  the  enemy,  must  all  be 
proceeded  against  by  civil  tribunals  only,  under  due 
forms  and  precedents  of  law,  by  the  tardy  and  ineffec 
tual  machinery  of  arrests  by  marshals,  who  can  rarely 
have  means  of  apprehending  them,  and  of  grand  ju 
ries,  who  meet  twice  a  year,  and  could  seldom,  if 
ever,  seasonably  secure  the  evidence  on  which  to  in 
dict  them ;  whether  government  is  not  entitled  by 
military  power  to  PREVENT  the  traitors  and  spies,  by 
arrest  and  imprisonment,  from  doing  the  intended 
mischief,  as  well  as  to  punish  them  after  it  is  done ; 
whether  war  can  be  carried  on  successfully,  without 
the  power  to  save  the  army  and  navy  from  being  be 
trayed  and  destroyed  by  depriving  any  citizen  tem 
porarily  of  the  power  of  acting  as  an  enemy,  when- 


MILITARY   ARRESTS    IN    TIME    OF   WAR.  165 

ever  there  is  reasonable  cause  to  suspect  him  of  being 
one  ;  whether  these  and  similar  proceedings  are,  or  are 
not,  in  violation  of  any  civil  rights  of  citizens  under 
the  Constitution,  are  questions  to  which  the  answers 
depend  on  the  construction  given  to  the  war  powers 
of  the  Executive.  Whatever  any  commander-in-chief, 
in  accordance  with  the  usual  practice  of  carrying  on 
war  among  civilized  nations,  may  order  his  army  and 
navy  to  do,  is  within  the  power  of  the  President  to 
order  and  to  execute,  because  the  Constitution,  in  ex 
press  terms,  gives  him  the  supreme  command  of  both. 
If  he  makes  war  upon  a  foreign  nation,  he  should  be 
governed  by  the  law  of  nations ;  if  lawfully  engaged  in 
civil  war,  he  may  treat  his  enemies  as  subjects  and  as 
belligerents. 

"  The  Constitution  provides  that  the  government  and 
regulation  of  the  land  and  naval  forces,  and  the  treat 
ment  of  captures,  should  be  according  to  law ;  but  it 
imposes,  in  express  terms,  no  other  qualification  of  the 
war  power  of  the  President.  It  does  not  prescribe  any 
territorial  limits,  within  the  United  States,  to  which  his 
military  operations  shall  be  restricted  ;  nor  to  which 
the  picket  guards  or  military  officers  (sometimes  called 
provost  marshals)  shall  be  confined.  It  does  not  exempt 
any  person  making  war  upon  the  country  or  aiding 
and  comforting  the  enemy,  from  being  captured,  or  ar 
rested,  wherever  he  may  be  found,  whether  within,  or 
beyond  the  lines  of  any  division  of  the  army.  It  does 
not  provide  that  public  enemies,  or  their  abettors,  shall 
find  safe  asylum  in  any  part  of  the  United  States  where 
military  power  can  reach  them.  It  requires  the  Presi 
dent,  as  an  executive  magistrate,  in  time  of  peace,  to 
see  that  the  laws  existing  in  time  of  peace  are  faithfully 


166  MILITARY    ARRESTS    IN    TIME    OF    WAR. 

executed  ;  and  as  cominander-in-chiefj  in  time  of  war, 
to  see  that  the  laws  of  war  are  executed.  In  doing 
both  duties  he  is  strictly  obeying  the  Constitution." 

MARTIAL   LAW   IS   THE  LAW   OF  WAR. 

It  consists  of  a  code  of  rules  and  principles  regulat 
ing  the  rights,  liabilities,  and  duties,  the  social,  munici 
pal,  and  international  relations,  in  time  of  war,  of  all 
persons,  whether  neutral  or  belligerent.  These  rules 
are  liable  to  modification  in  the  United  States  by  stat 
utes  usually  termed  "  military  law,"  or  "  articles  of 
war,"  and  by  the  "  rules  and  regulations  made  in  pur 
suance  thereof." 

FOUNDATION   OF   MARTIAL   LAW. 

Municipal  law  is  founded  upon  the  necessities  of  so 
cial  organization.  Martial  law  is  founded  upon  the 
necessities  of  war.  Whatever  compels  a  resort  to  war, 
compels  the  enforcement  of  the  laws  of  war. 


THE   LAWFUL   MEANS  OF  WAR   AS    SHOWN   BY   THE  OBJECTS   AND 
NECESSITIES   OF  WAR. 

The  objects  and  purposes  for  which  war  is  inaugu 
rated  require  the  use  of  the  instrumentalities  of  war. 
When  the  law  of  force  is  appealed  to,  force  must  be 
sufficiently  untrammelled  to  be  effectual.  Military 
power  must  not  be  restrained  from  reaching  the  pub 
lic  enemy  in  all  localities,  under  all  disguises.  In  war 
there  should  be  no  asylum  for  treason.  The  aegis  of 
law  should  not  cover  a  traitor.  A  public  enemy, 
wherever  found  in  arms,  may,  if  he  resists,  be  killed, 
or  captured,  and  if  captured  he  may  be  detained  as  a 


MILITARY    ARRESTS   IN   TIME    OF   WAR.  167 

prisoner.  The  purposes  for  which  war  is  carried  on 
may  and  must  be  accomplished.  If  it  is  justifiable  to 
commence  and  continue  war,  then  it  is  justifiable  to 
extend  the  operations  of  war  until  they  shall  have 
completely  attained  the  end  for  which  it  was  com 
menced,  by  the  use  of  all  means  employed  in  accord 
ance  with  the  rules  of  civilized  warfare.  And  among 
those  means  none  are  more  familiar  or  more  essential 
than  that  of  capturing,  or  arresting  and  confining  the 
enemy.  Necessity  arbitrates  the  rights  and  the  meth 
ods  of  war.  Whatever  hostile  military  act  is  essential 
to  public  safety  in  civil  war  is  lawful. 

POWERS  AND   RESPONSIBILITIES   OF  MILITARY  COMMANDERS. 

"  The  law  of  nature  and  of  nations  gives  to  belliger 
ents  the  right  to  employ  such  force  as  may  be  neces 
sary  in  order  to  obtain  the  object  for  which  the  war 
was  undertaken."  Beyond  this  the  use  of  force  is 
unlawful.  This  necessity  forms  the  limit  of  hostile 
operations. 

We  have  the  same  rights  of  war  against  the  allies 
or  associates  of  an  enemy  as  against  the  principal  bel 
ligerent. 

When  military  forces  are  called  into  service  for  the 
purpose  of  securing  the  public  safety,  they  may  law 
fully  obey  military  orders  made  by  their  superior  offi 
cers.  The  commander-in-chief  is  responsible  for  the 
mode  of  carrying  on  war.  He  determines  the  persons 
or  people  against  whom  his  forces  shall  be  used.  He 
alone  is  constituted  the  judge  of  the  nature  of  the  exi 
gency,  of  the  appropriate  means  to  meet  it,  and  of  the 
hostile  character  or  purposes  of  individuals  whose  con 
duct  gives  him  cause  to  believe  them  to  be  enemies. 


168  MILITARY   ARRESTS    IN   TIME    OF    WAR, 

His  right  to  seize,  capture,  detain  and  imprison  such 
persons  is  as  unquestionable  as  his  right  to  carry  on 
war.  The  extent  of  the  danger  he  is  to  provide 
against  must  be  determined  by  him ;  he  is  responsi 
ble,  if  he  neglects  to  use  the  means  of  meeting  or 
avoiding  it. 

The  nature  of  the  difficulty  to  be  met  and  the  object 
to  be  accomplished  afford  the  true  measure  and  limit  of 
the  use  of  military  powers.  The  military  commander 
must  judge  who  the  public  enemy  are,  where  they  are, 
what  degree  of  force  shall  be  used  against  them,  and 
what  warlike  measures  are  best  suited  to  conquer  or 
effectually  restrain  them  from  future  mischief  If  the 
enemy  be  in  small  force,  they  may  be  captured  by  an 
other  small  force  ;  if  the  enemy  be  a  single  individual, 
he  may  be  captured  by  a  provost  guard  or  marshal.  If 
an  officer,  in  the  honest  exercise  of  his  duty,  makes  a 
mistake  in  arresting  a  friend  instead  of  an  enemy,  or  in 
detaining  a  suspicious  person,  who  may  be  finally  lib 
erated,  he  is  not  responsible  for  such  error  in  criminal 
or  civil  courts. 

Any  other  rule  would  render  war  impracticable,  and, 
by  exposing  soldiers  to  the.  hazard  of  ruinous  litigation 
if  held  liable  to  civil  tribunals,  would  render  obedience 
to  orders  dangerous,  and  thus  would  break  down  the 
discipline  of  armies. 

ARRESTS  ON   SUSPICION. 

Arrests  or  captures  of  persons  whose  conduct  gives 
reasonable  cause  to  suspect  that  they  contemplate  acts 
of  hostility,  are  required  and  justified  by  military  and 
martial  law.  Such  arrests  are  precautionary.  The 


MILITARY    ARRESTS    IN   TIME    OF   WAR.  169 

detention  of  such  suspected  persons  by  military  author 
ity  is,  for  the  same  reason,  necessary  and  justifiable.* 

Nothing  in  the  Constitution  or  laws  can  define  the 
possible  extent  of  any  military  danger.  Nothing  there 
fore  in  either  of  them  can  fix  or  define  the  extent  of 
power  necessary  to  meet  the  emergency,  to  control  the 
military  movements  of  the  army,  or  of  any  detachments 
from  it,  or  of  any  single  officer,  provost  marshal,  or  pri 
vate. 

Hence  it  is  worse  than  idle  to  attempt  to  lay  down 
rules  of  law  defining  the  territorial  limits  of  military 
operations,  or  of  martial  law,  or  of  captures  and  ar 
rests. 

Wherever  danger  arises,  there  should  go  the  military 
means  of  defence  or  safeguard  against  it.  Wherever  a 
single  enemy  makes  his  appearance,  there  he  should  be 
arrested  and  restrained. 

ABUSE  OF  POWER  OF  ARREST. 

The  power  of  arrest  and  imprisonment  is  doubtless 
liable  to  abuse.  But  the  liability  to  abuse  does  not 
prove  that  the  power  does  not  exist.  "  There  is  no 
power,"  says  the  Supreme  Court,  "  that  is  not  suscepti 
ble  of  abuse.  The  remedy  for  this,  as  well  as  for  all 
other  official  misconduct,  if  it  should  occur,  is  to  be 
found  in  the  Constitution  itself.  In  a  free  government 
the  danger  must  be  remote,  since  in  addition  to  the 
high  qualities  which  the  Executive  must  be  presumed 
to  possess  of  public  virtue,  and  honest  devotion  to  the 
public  interests,  the  frequency  of  elections,  and  the 
watchfulness  of  the  representatives  of  the  nation,  carry 

*  Luther  v.  Borden,  7  Howard's  Supreme  Court  Reports,  p.  1. 

22 


170  MILITARY    ARRESTS    IN    TIME    OF   WAR. 

with  them  all  the  checks  which  can  be  useful  to  guard 
against  usurpation  or  wanton  tyranny."  * 


SAFEGUARDS. 


Our  safeguards  against  the  abuse  of  military  power 
are  found,  not  in  the  denial  of  its  existence,  not  in  de 
priving  ourselves  of  its  protection  in  time  of  public 
danger,  but  in  the  civil  responsibility  of  officers  for 
acts  not  justified  by  martial  law,  in  the  right  to  im 
peach  the  President  if  he  wilfully  fails  to  execute  the 
laws,  in  the  frequent  change  of  public  officers,  in  the  in 
telligence  and  high  character  of  our  soldiers,  and  in  the 
legislative  power  of  Congress,  which  alone  can  declare 
war,  raise  and  support  armies,  make  laws  for  their  gov 
ernment  while  in  actual  service,  and  may  withhold 
supplies,  and  may  regulate  or  prevent  the  use  of  the 
army  and  the  navy  where  and  when  they  might  en 
danger  the  public  safety. 

EFFECT  OF  WAR  UPON  THE  COURTS  AND  OF  COURTS  UPON  THE  WAR. 

Justice  should  rule  over  the  deadly  encounters  of  the 
battle-field ;  but  courts  and  constables  are  there  quite 
out  of  place.  Far  from  the  centres  of  active  hostilities, 
judicial  tribunals  may  still  administer  municipal  law,  so 
long  as  their  proceedings  do  not  interfere  with  military 
operations.  But  if  the  members  of  a  court  should  im 
pede,  oppose,  or  interfere  with  military  operations  in 
the  field,  whether  acting  as,  magistrates  or  as  individ 
uals,  they,  like  all  other  public  enemies,  are  liable  to 
capture  and  imprisonment  by  martial  law,  They  have 
then  lost  the  right  to  hold  office,  and  have  become  ac- 

*  12  Wheaton's  Reports,  p.  32. 


MILITARY    ARRESTS    IN   TIME   OF  WAR.  171 

lively  hostile.  The  character  of  their  actions  is  to  be 
determined  by  the  military  commander,  not  by  the 
parchment  which  contains  their  commissions.  A  judge 
may  be  a  public  enemy  as  effectually  as  any  other  citi 
zen.  The  rebellious  districts  show  many  examples  of 
such  characters.  Is  a  judge  sitting  in  a  northern 
court,  and  endeavoring  to  commit  acts  of  hostility  un 
der  the  guise  of  administering  law,  any  less  a  public 
enemy  than  if  he  were  holding  court  in  South  Caro 
lina,  and  pretending  to  confiscate  the  property  of  loyal 
men  ?  Are  the  black  gown  and  wig  to  be  the  protec 
tion  of  traitors  ? 

General  Jackson  arrested  a  judge  in  the  war  of  1812, 
kept  him  in  prison  in  order  to  prevent  his  acts  of  judi 
cial  hostility,  and  liberated  him  when  he  had  repulsed 
the  enemy.  The  illegal  fine  imposed  on  him  by  that 
judge  was  repaid  to  the  General  after  many  years,  un 
der  a  vote  of  Congress.  Why  should  a  judge  be  pro 
tected  from  the  consequences  of  his  acts  of  hostility 
more  than  the  clergyman,  the  lawyer,  or  the  governor 
of  a  State  ? 

The  public  safety  must  not  be  hazarded  by  enemies, 
whatever  position  they  may  hold  in  public  or  private 
life.  The  more  eminent  their  position,  the  more  dan 
gerous  their  disloyalty.  Among  acts  of  hostility  which 
would  show  a  judge  to  be  a  public  enemy,  and  would 
subject  him  to  arrest,  are  these  :  — 

1.  When  a  State  judge  is  judicially  apprised  that  a 
party  is  in  custody  under  the  authority  of  the  United 
States,  he  cannot  lawfully  proceed,  under  a  habeas  corpus 
or  other  process,  to  discharge  the  prisoner. 

If  he  orders  the  prisoner*  to  be  discharged,  it  is  the 
duty  of  the  officer  holding  the  prisoner  to  resist  that 


172  MILITARY    ARRESTS    IN    TIME    OF    WAR. 

order,  and  the  laws  of  the  United  States  will  sustain 
him  in  doing  so,  and  in  arresting  and  imprisoning  the 
judge,  if  necessary.* 

2.  So  long  as  the  courts  do  not  interfere  w^ith  military 
operations  ordered  by  the  cornrnander-in-chief,  litigation 
may  proceed  as  usual ;  but  if  that  litigation  entangles 
and  harasses  the  soldiers  or  the  officers  so  as  to  disable 
them  from  doing  their  military  duty,  the  judges  and  the 
actors  being  hostile,  and  using  legal  processes  for  the 
purpose  and  design  of  impeding  and  obstructing  the 
necessary  military  operations  in  time  of  war,  the  courts 
and  lawyers  are  liable  to  precautionary  arrest  and  con 
finement,  whether  they  have  committed  a  crime  known 
to  the  statute  law  or  not.  Military  restraint  is  to  be  used 
for  the  prevention  of  hostilities, and  public  safety  in  time 
of  civil  war  will  not  permit  courts  or  constables,  colleges 
or  slave-pens,  to  be  used  as  instruments  of  hostility  to 
the  country. 

When  a  traitor  is  seized  in  the  act  of  committing 
hostility  against  the  country,  it  makes  no  difference 
whether  he  is  captured  in  a  swamp  or  in  a  court-house, 
or  whether  he  has  in  his  pocket  the  commission  of  a 
judge  or  a  colonel. 

Commanders  in  the  field  are  under  no  obligations  to 
take  the  opinions  of  judges  as  to  the  character  or  ex 
tent  of  their  military  operations,  nor  as  to  the  question 
who  are  and  who  are  not  public  enemies,  nor  who  have 
and  who  have  not  given  reasonable  cause  to  believe 
that  acts  of  hostility  are  intended.  These  questions 
are,  by  the  paramount  laws  of  war,  to  be  settled  by  the 
officer  in  command. 

*  AUeman  v.  Booth,  21  How.  524,  525. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  173 


MILITARY  ARRESTS   ARE  NOT  FORBIDDEN  BY  THE  CONSTITUTION. 

The  framers  of  the  Constitution  having  given  to  the 
-commander-in-chief  the  full  control  of  the  army  when 
in  active  service,  subject  only  to  the  articles  of  war, 
have  therefore  given  him  the  full  powers  of  capture 
and  arrest  of  enemies,  and  have  placed  upon  him  the 
corresponding  obligation  to  use  any  and  all  such  pow 
ers  as  may  be  proper  to  insure  the  success  of  our  arms. 
To  carry  on  war  without  the  power  of  capturing  or 
arresting  enemies  would  be  impossible.  We  should 
not,  therefore,  expect  to  find  in  the  Constitution  a  pro 
vision  which  would  deprive  the  country  of  any  means 
of  self-defence  in  time  of  unusual  public  danger. 

We  look  in  vain  in  the  Constitution  for  a  clause 
which  in  any  way  limits  the  methods  of  using  war 
powers  when  war  exists. 

Some  persons  have  turned  attention  to  certain  pas 
sages  in  the  amendments  relating,  as  was  supposed,  to 
this  subject.  Let  us  examine  them  :  — 

ARTICLE  IY.  "  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects  against  unreasonable  searches 
and  seizures  shall  not  be  violated." 

This  amendment  merely  declares  that  the  right  of 
being  secure  against  unreasonable  seizures  or  arrests 
shall  not  be  violated.  It  does  not  declare  that  no  ar 
rests  shall  be  made.  Will  any  one  deny  that  it  is  rea 
sonable  to  arrest  or  capture  the  person  of  a  public 
enemy  ? 

If  all  arrests,  reasonable  or  unreasonable,  were  pro 
hibited,  public  safety  would  be  disregarded  in  favor  ot 
the  rights  of  individuals. 


174  MILITARY   ARRESTS    IN    TIME   OF   WAR. 

Not   only  may  military,  but   even  civil   arrests    be 
made  when  reasonable. 


ARRESTS   WITHOUT   WARRANT. 


It  is  objected  that  military  arrests  are  made  without 
warrant.  The  military  order  is  the  warrant  author 
izing  arrest,  issuing  from  a  commander,  in  like  manner 
as  the  judicial  order  is  the  warrant  authorizing  arrest, 
issuing  from  a  court.  But  even  civil  arrests  at  com 
mon  law  may  be  made  without  warrant  by  constables, 
or  by  private  persons  (1  Chitty,  C.  L.,  15  to  22). 
There  is  a  liability  to  fine  and  imprisonment  if  an 
offender  is  voluntarily  permitted  to  escape  by  a  per 
son  present  at  the  commission  of  a  felony  or  the  inflic 
tion  of  a  dangerous  wound. 

Whenever  there  is  probable  ground  of  suspicion  that 
a  felony  has  been  committed,  a  private  person  may 
without  warrant  arrest  the  felon,  and  probable  cause 
will  protect  the  captor  from  civil  liability. 

"  When  a  felony  has  been  committed,  a  constable 
may  arrest  a  supposed  offender  on  information,  without 
a  positive  charge,  and  without  a  positive  knowledge  of 
the  circumstances."  And  Chitty  says,  page  217,  "A 
constable  may  justify  an  imprisonment,  without  war 
rant,  on  a  reasonable  charge  of  felony  made  to  him, 
although  he  afterwards  discharge  the  prisoner  without 
taking  him  before  a  magistrate,  although  it  turns  out 
that  no  felony  was  committed  by  any  one." 

In  Wakely  v.  Hart,  6  Binney,  318,  Chief  Justice 
Tilghman  says  of  the  constitution  of  Pennsylvania, 
which  is  nearly  in  the  same  words  on  this  subject  as 
the  Constitution  of  the  United  States,  — 


MILITARY   ARRESTS    IN    TIME    OF    WAR.  175 

"  The  plaintiffs  insist  that  by  the  constitution  of  this  State  no 
arrest  is  lawful  without  warrant  issued  on  probable  cause,  sup 
ported  by  oath.  Whether  this  be  the  true  construction  of  the 
Constitution  is  the  main  point  in  the  case.  It  is  declared  in  the 
9th  article,  section  7,  '  that  the  people  shall  be  secure  in  their  per 
sons,  houses,  papers,  and  possessions,  from  unreasonable  arrests, 
and  that  no  warrant  to  search  any  place,  or  seize  any  person  or 
thing,  shall  issue  without  describing  them  as  nearly  as  may  be, 
nor  without  probable  cause,  supported  by  oath  or  affirmation.' 

"  The  provisions  of  this  section,  so  far  as  concern  warrants,  only 
guard  against  their  abuse  by  issuing  them  without  good  cause, 
and  in  so  general  and  vague  a  form  as  may  put  it  in  the  power  of 
officers  who  execute  them  to  harass  innocent  persons  under  pre 
tence  of  suspicion  ;  for,  if  general  warrants  were  allowed,  it  must 
be  left  to  the  discretion  of  the  officer  on  what  persons  or  things 
they  are  to  be  executed.  But  it  is  nowhere  said  that  there  shall 
be  no  arrest  without  warrant.  To  have  said  so  would  have  en 
dangered  the  safety  of  society.  The  felon  who  is  seen  to  commit 
murder  or  robbery  must  be  arrested  on  the  spot,  or  suffered  to 
escape.  So,  although  if  not  seen,  yet  if  known  to  have  committed 
a  felony,  and  pursued  with  or  without  warrant,  he  may  be  arrested 
by  any  person. 

"  And  even  where  there  is  only  probable  cause  of  suspicion,  a 
private  person  may,  without  warrant,  at  his  peril,  make  the  arrest. 
I  say  at  his  peril,  for  nothing  short  of  proving  the  felony  will  jus 
tify  the  arrest"  (that  is,  by  a  private  person  on  suspicion). 
"These  principles  of  common  law  are  essential  to  the  welfare  of 
society,  and  not  intended  to  be  altered  or  impaired  by  the  Con 
stitution." 

The  right  summarily  to  arrest  persons  in  the  act  of 
committing  heinous  crimes,  has  thus  been  sanctioned 
from  ancient  times  by  the  laws  of  England  and  Amer 
ica,  No  warrant  is  required  to  justify  arrests  of  per 
sons  committing  felonies.  The  right  to  make  such 
arrests  is  essential  to  the  preservation  of  the  existence 
of  society,  though  its  exercise  ought  to  be  carefully 
guarded.  The  great  problem  is  to  reconcile  the  neces- 


176  MILITARY    ARRESTS    IN   TIME    OF   WAR. 

sities   of  government  with    the    security   of  personal 
liberty. 

If,  in  time  of  peace,  civil  arrests  for  felonies  may  be 
made  by  private  citizens  without  warrant,  a  fortiori, 
military  arrests  in  time  of  war,  for  acts  of  hostility, 
either  executed  or  contemplated,  may  be  made  under 
the  warrant  of  a  military  command.  And  the  pro 
vision  that  unreasonable  seizures  or  arrests  are  prohibited 
has  no  application  to  military  arrests  in  time  of  war. 

OBJECTION  THAT   ARRESTS    ARE   MADE   WITHOUT  INDICTMENT. 

The  5th  article  of  the  amendments,  of  the  Constitu 
tion  provides  that  — 

"  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia  when  in  actual  service  in  time  of  war  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  clue  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use  without  just  compensa 
tion." 

This  article  has  no  reference  to  the  rights  of  citizens 
under  the  exigencies  of  war,  but  relates  only  to  their 
rights  in  time  of  peace.  It  is  provided  that  no  person 
shall  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb.  If  rebellion  or  treason  be  one 
of  the  offences  here  alluded  to,  and  a  rebel  has  been 
once  under  fire,  and  thus  been  put  in  jeopardy  of  life 
or  limb  (in  one  sense  of  that  phrase),  he  could  not  be 
fired  at  a  second  time  without  violating  the  Constitu 
tion,  because  a  second  shot  would  put  him  twice  in 
jeopardy  for  the  same  offence. 


MILITARY   ARRESTS    IN    TIME    OF    WAR.  177 

"  Nor  shall  he  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law."  If  this  provision  relates 
to  the  rights  of  citizens  in  time  of  war,  it  is  obvious  that 
no  property  can  be  captured,  no  rebel  killed  in  battle, 
or  imprisoned,  by  martial  law. 

The  claim  that  "  no  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  infamous  crime,  unless  upon  a 
presentment  or  indictment  of  a  grand  jury,  except  in 
cases,"  &c.,  in  like  manner  applies  only  to  the  rights  of 
citizens  in  time  of  peace. 

What  are  "  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia  when  in  actual  service  in  time  of  war 
or  public  danger  "  ? 

Suppose  the  Union  forces  arrest  a  spy  from  the  ene 
my's  camp,  or  catch  a  band  of  guerrillas ;  neither  the  spy 
nor  the  guerrillas  belong  to  our  land  or  naval  forces. 
The  enemy  are  no  part  of  our  army  or  of  our  militia ; 
and  while  this  provision  covers  offences  therein  speci 
fied,  if  committed  by  our  troops,  and  allows  them  to  be 
dealt  with  by  martial  law,  it  would  (if  it  is  applicable 
in  time  of  war)  prevent  our  executing  martial  law 
against  such  enemies  captured  in  war.  We  should, 
under  such  a  construction,  be  required  to  indict  and 
prosecute  our  enemy  for  capital  crimes,  instead  of  cap 
turing  and  treating  them  as  prisoners  of  war,  or  pun 
ishing  them  according  to  the  laws  of  war.  The  absur 
dity  of  such  a  construction  is  obvious.  The  language 
cited  is  inapplicable  to  a  case  of  military  arrest  in  war 
time. 

Captured  soldiers  are  not  ordinarily  held  as  malefac 
tors,  but  are  treated  as  prisoners  of  war,  to  be  detained, 
released,  exchanged,  or  paroled.  They  are  not  ex 
pected  to  plead  to  any  indictment  or  other  civil  pro- 
23 


178  MILITARY   ARRESTS   IN    TIME    OF   WAR. 

cess.  They  are  not  held  in  custody  to  answer  before 
any  judicial  tribunal  for  any  crime,  infamous  or  other 
wise.  They  are  treated  in  strict  accordance  with  the 
laws  of  war.  Hence  that  clause  in  the  Constitution 
which  provides  for  trial  by  jury,  the  right  to  be  in 
formed  of  the  nature  and  cause  of  the  accusation,  &c., 
relates  in  express  terms  only  to  criminal  prosecutions 
in  civil  courts,  and  has  nothing  to  do  with  military 
arrests  or  the  procedures  of  martial  law.  Therefore  it 
is  obvious  that,  while  criminal  proceedings  against  per 
sons  not  in  the  naval  or  military  service  are  guarded 
in  time  of  peace,  and  the  outposts  of  justice  are  secured 
by  freedom  from  unreasonable  arrests,  by  requiring 'in 
dictments  to  be  found  by  grand  jurors,  by  speedy  and 
public  trial  before  impartial  juries,  by  information  of 
the  nature  of  the  charges,  open  examination  of  wit 
nesses,  aid  of  counsel,  &c.,  these  high  privileges  are 
not  accorded  to  our  public  enemy  in  time  of  war,  nor 
to  those  citizens  who  commit  military  offences,  which, 
not  being  against  any  statute  or  municipal  law,  cannot 
be  the  foundation  of  any  indictment,  punishment,  or 
trial  by  jury,  and  do  riot  constitute  any  capital  or 
otherwise  infamous  crime,  nor  to  persons  who  commit 
acts  which  impede,  embarrass,  and  tend  to  thwart  the 
military  measures  of  the  government. 

The  safeguards  of  criminal  procedures  in  courts  of 
justice  in  time  of  peace  are  not  to  be  construed  into 
protection  of  public  enemies  in  time  of  war. 

THE   CONSTITUTION   SANCTIONS   MILITARY  ARRESTS. 

The  Constitution  itself  authorizes  courts  martial. 
These  courts  punish  for  offences  different  from  those 
provided  for  by  any  criminal  statute.  Therefore  it  fol- 


MILITARY   ARRESTS    IN   TIME    OF   WAR.  179 

lows  that  crimes  not  against  statute  laws  may  be  pun 
ished  b}^  law  according  to  the  Constitution,  and  also 
that  arrests  necessary  to  bring  the  offenders  before 
that  tribunal  are  lawful. 

In  Dynes  v.  Hoover*  the  evidence  was,  that  an  at 
tempt  had  been  made  to  hold  a  marshal  liable  for  exe 
cuting  the  order  of  the  President  of  the  United  States 
in  committing  Dynes  to  the  penitentiary  for  an  offence 
of  which  he  had  been  adjudged  guilty  by  a  naval  court 
martial. 

This  case  shows  that  the  crimes  to  be  punished,  and 
the  modes  of  procedure  by  courts  martial  are  different 
from  those  of  ordinary  civil  tribunals ;  that  the  jurisdic 
tion  of  these  classes  of  tribunals  is  distinct,  and  that  the 
judicial  power,  and  the  military  power  of  courts  martial, 
both  authorized  by  the  same  Constitution,  are  inde 
pendent  of  each  other,  and  that  courts  martial  may 
punish  offences  other  than  those  provided  for  by  crim 
inal  statutes.  Therefore  it  follows  that  military  arrests 
may  be  lawfully  made  of  those  who  are  guilty  of  such 
offences.  The  law  is  thus  laid  down  by  the  Supreme 
Court :  — 

"The  demurrer  admits  that  the  court  martial  was 
legally  organized,  and  the  crime  charged  was  one  for 
bidden  by  law ;  that  the  court  had  jurisdiction  of  the 
charge  as  it  was  made ;  that  a  trial  took  place  before 
the  court  upon  the  charge,  and  the  defendant's  plea  of 
not  guilty ;  and  that,  upon  the  evidence  in  the  case, 
the  court  found  Dynes  guilty  of  an  attempt  to  desert, 
and  sentenced  him  to  be  punished,  as  has  been  already 
stated ;  that  the  sentence  of  the  court  was  approved 
by  the  Secretary,  and-  by  his  direction  Dynes  was. 

*  20  Howard's  Supreme  Court  Reports,  p.  65. 


180  MILITARY   ARRESTS   IN   TIME   OF   WAR. 

brought  to  Washington ;  and  that  the  defendant  was 
marshal  for  the  District  of  Columbia,  and  that  in  re 
ceiving  Dynes  and  committing  him  to  the  keeper  of 
the  penitentiary,  he  obeyed  the  orders  of  the  President 
of  the  United  States  in  execution  of  the  sentence. 
Among  the  powers  conferred  upon  Congress  by  the 
8th  section  of  the  1st  article  of  the  Constitution  are  the 
following :  '  To  provide  and  maintain  a  navy ; '  '  to 
make  rules  for  the  government  of  the  land  and  naval 
forces.'  And  the  eighth  amendment,  which  requires  a 
presentment  of  a  grand  jury  in  cases  of  capital  or 
otherwise  infamous  crime,  expressly  excepts  from  its 
operation  '  cases  arising  in  the  land  or  naval  forces/ 
And  by  the  2d  section  of  the  2d  article  of  the  Consti 
tution,  it  is  declared  that  '  the  President  shall  be  com- 
mander-in-chief  of  the  army  and  navy  of  the  United 
States,  and  of  the  militia  of  the  several  States  when 
called  into  the  actual  service  of  the  United  States/ 

"  These  provisions  show  that  Congress  has  the  power 
to  provide  for  the  trial  and  punishment  of  military  and 
naval  offences  in  the  manner  then  and  now  practised  by 
civilized  nations,  and  that  the  power  to  do  so  is  given 
without  any  connection  between  it  and  the  3d  article 
of  the  Constitution,  defining  the  judicial  power  of  the 
United  States  ;  indeed,  that  the  two  powers  are  entirely 
independent  of  each  other." 

The  fact  that  the  power  exists  of  suspending  the  writ 
of  habeas  corpus  in  time  of  rebellion,  when  the  public 
safety  requires  it,  shows  that  the  framers  of  the  Con 
stitution  expected  that  arrests  would  be  made  for 
crimes  not  against  municipal  law,  and  that  the  admin 
istration  of  the  ordinary  rules  of  law  on  habeas*  corpus 
would  require  discharge  of  prisoners,  and  that  such  dis- 


MILITARY   ARRESTS    IN    TIME    OF   WAR.  181 

charge  might  endanger  public  safety.  It  was  to  pro 
tect  public  safety  in  time  of  rebellion  that  the  right  to 
suspend  the  habeas  corpus  was  left  in  the  power  of  gov 
ernment. 

MILITARY  POWERS   MAY  BE   DELEGATED. 

In  the  course  of  the  preceding  remarks  the  com- 
mander-in-chief  has  been  the  only  military  authority 
spoken  of  as  authorized  to  order  arrests  and  seizures. 
His  powers  may  be  delegated  to  officers,  and  may  be 
used  by  them  under  his  command.  So  also  the  Secre 
taries  of  War  and  State  are  public  officers,  through 
whom  the  President  acts  in  making  orders  for  arrests, 
and  their  acts  are  in  law  the  acts  of  the  President.  It 
is  necessary  to  the  proper  conduct  of  war  that  many  if 
not  most  of  the  powers  of  the  President  as  commander 
should  be  delegated  to  his  secretaries  and  his  generals, 
and  that  many  of  their  powers  should  be  exercised  by 
officers  under  them ;  and  although  it  not  seldom  hap 
pens  that  subalterns  abuse  the  power  of  arrest  and  de 
tention,  yet  the  inconvenience  resulting  from  this  fact 
is  one  of  the  inevitable  misfortunes  of  war. 

OBEDIENCE  OF  ORDERS  IS  JUSTIFICATION. 

Whatever  military  man  obeys  the  order  of  his  supe 
rior  officer  is  justified  by  law  in  doing  so.  Obedience 
to  orders  is  a  part  of  the  law  of  the  land ;  a  violation 
of  that  law  subjects  the  soldier  to  disgraceful  punish 
ment.  Acts  done  in  obedience  to  military  orders  will 
not  subject  the  agent  to  civil  or  criminal  liability  in 
courts  of  law.*  But,  on  the  other  hand,  any  abuse  of 

*  Since  the  third  edition  of  this  essay  was  in  print,  Congress  passed  the  act  of  March  3, 
1863,  which  fully  carries  out  this  principle,  and  since  the  forty-second  edition  was  in  print, 
also  passed  the  act  of  May  11,  1866,  and  the  act  of  1868  (chap.  276),  covering  all  cases 
which  occurred  during  the  war. 


182  MILITARY   ARRESTS    IN    TIME    OF   WAR. 

military  authority  subjects  the  offender  to  civil  liability 
for  such  abuse,  and  he  who  authorized  the  wrong  is 
responsible  for  it. 

OFFICERS   MAKING  ARRESTS    NOT  LIABLE  TO  CIVIL    SUIT    OR    CRIMI 
NAL  PROSECUTION. 

That  military  arrests  are  deemed  necessary  for  pub 
lic  safety  by  Congress  is  shown  by  the  act  of  March  3, 
1863,  ch.  81,  wherein  it  is  provided  that  no  person 
arrested  by  authority  of  the  President  of  the  United 
States  shall  be  discharged  from  imprisonment  so  long 
as  the  war  lasts,  and  the  President  shall  see  fit  to 
suspend  the  privilege  of  the  writ  of  habeas  corpus. 

The  4th  section  of  the  same  act  provides  "  that  any 
order  of  the  President,  or  under  his  authority,  made 
at  any  time  during  the  existence  of  this  present  re 
bellion,  shall  be  a  defence  in  all  courts  to  any  action 
or  prosecution,  civil  or  criminal,  pending  or  to  be  com 
menced  for  any  search,  seizure,  arrest,  or  imprison 
ment,  made,  done,  or  committed,  or  acts  omitted  to  be 
done  under  and  by  virtue  of  such  order,  or  under  color 
of  any  law  of  Congress ;  and  such  defence  may  be  made 
by  special  plea,  or  under  the  general  issue." 

The  same  act  further  provides  that  actions  against 
officers  and  others  in  tort  for  arrests  commenced  in 
State  Courts  may  be  removed  to  Circuit  Courts,  and 
thence  to  the  Supreme  Court.  The  jurisdiction  of 
State  courts  thereupon  ceases,  and  the  rights  of  the 
defendant  may  be  protected  by  the  laws  of  the  United 
States,  administered  by  the  Supreme  Court,  thus  se 
curing  immunity  for  the  past  and  protection  for  the 
future  performance  of  military  and  civil  duties  under 
orders  of  the  President  in  time  of  war.  The  provisions 


MILITARY   ARRESTS    IN   TIME    OF   WAR.  183 

of  this  act  contain  an  implied  admission  of  the  neces 
sity  to  public  welfare  of  arrests  for  crimes  not  against 
statutes,  but  endangering  public  safety,  and  of  impris 
onments  for  offences  not  known  to  the  municipal  laws, 
but  yet  equally  dangerous  to  the  country  in  civil 
war. 

ARBITRARY  POWER  NOT    CONSISTENT  WITH  FREE   OR  CONSTITU 
TIONAL  GOVERNMENTS. 

The  exercise  of  irresponsible  powers  is  incompatible 
with  constitutional  government.  Unbridled  will,  the 
offspring  of  selfishness  and  of  arrogance,  regards  no 
rights,  and  listens  to  no  claims  of  reason,  justice,  policy, 
or  honor.  Its  imperious  mandate  being  its  only  law, 
arbitrary  power  sucks  out  the  heart's  blood  of  civil 
liberty.  Vindicated  by  our  fathers  on  many  a  hard- 
fought  battle-field,  and  made  holy  by  the  sacrifice  of 
their  noblest  sons,  that  liberty  must  not  be  wounded 
or  destroyed  ;  and  in  time  of  peace,  in  a  free  country, 
its  power  should  shelter  loyal  citizens  from  arbitrary 
arrests  and  unreasonable  seizures  of  their  persons  or 
property. 

TRUE   MEANING  OF  «  ARBITRARY"  AS  DISTINGUISHED  FROM  "DISCRE 
TIONARY." 

Among  the  acts  of  war  which  have  been  severely- 
censured,  is  that  class  of  military  captures  reproach 
fully  styled  arbitrary  arrests.  What  is  the  true  mean 
ing  of  the  word  "  arbitrary  "  ?  When  used  to  char 
acterize  military  arrests,  it  means  such  as  are  made  at 
the  mere  will  and  pleasure  of  the  officer,  without  right 
and  without  lawful  authority.  But  powers  are  not 
arbitrary  because  they  may  be  discretionary.  The 
authority  of  judges  is  often  discretionary.  Although 


184  MILITARY    ARRESTS    IN   TIME    OF   WAR. 

judicial  discretion  is  governed  by  rules,  made  by  the 
judges  themselves,  yet  no  one  can  justly  claim  that 
such  authority  is  arbitrary.  The  existence  of  an 
authority  may  be  undeniable.,  while  the  mode  of 
using  it  may  be  discretionary.  A  power  is  arbi 
trary  only  when  it  is  founded  upon  no  rightful 
authority,  civil  or  military.  It  may  be  within 
the  discretion  of  a  commander  to  make  a  military 
order,  to  dictate  its  terms,  to  act  upon  facts  and  rea 
sons  known  only  to  himself;  it  may  suddenly  and  vio 
lently  affect  the  property,  liberty,  or  life  of  soldiers  or 
of  citizens  ;  yet  such  an  order,  being  the  lawful  use  of 
a  discretionary  authority,  is  not  the  exercise  of  arbi 
trary  power.  When  such  orders  are  issued  on  the 
field,  or  in  the  midst  of  active  operations,  no  objec 
tion  is  made  to  them  on  the  pretence  that  they  are 
lawless  or  unauthorized,  nor  for  the  reason  that  they 
must  be  instantly  and  absolutely  obeyed.  The  differ 
ence  is  plain  between  the  exercise  of  arbitrary  power, 
and  the  arbitrary  exercise  of  power.  The  former  is 
against  law ;  the  latter,  however  ungraciously  or  incon 
siderately  applied,  is  lawful. 

MILITARY  ARRESTS  LAWFUL. 

The  laws  of  war,  military  and  martial,  written  and 
unwritten,  are  founded  on  the  necessities  of  govern 
ment,  and  sanctioned  by  the  Constitution,  and  have  been 
recognized  as  valid  in  several  acts  of  Congress,  and  by 
the  Supreme  Court  of  the  United  States.  Arrests  made 
under  the  laws  of  war  are  neither  arbitrary  nor  without 
legal  justification.  In  Cross  v.  Harrison,  Judge  Wayne, 
delivering  the  opinion  of  the  Court,*  says,  — 

*  16  Howard,  189,  190. 


MILITARY   ARRESTS    IN    TIME    OF   WAR.  185 

"Early  in  1847  the  President,  as  constitutional  commander-in- 
chief  of  the  array  and  navy,  authorized  the  military  and  naval 
commanders  of  our  forces  in  California  to  exercise  the  belligerent 
rights  of  a  conqueror,  and  to  form  a  civil  government  for  the  con 
quered  country,  and  to  impose  duties  on  imports  and  tonnage  as 
military  contributions  for  the  support  of  the  government  and  of 
the  army,  which  had  the  conquest  in  possession.  No  one  can 
doubt  that  these  orders  of  the  President  and  the  action  of  our 
army  and  navy  commanders  in  California,  in  conformity  with  them, 
were  according  to  the  law  of  arms,"  &c. 

So,    in    Fleming    v.    Paige,*    Chief   Justice    Taney 

says,  — 

"  The  person  who  acted  in  the  character  of  collector  in  this  in 
stance,  acted  as  such  under  the  authority  of  the  military  com 
mander  and  in  obedience  to  his  orders ;  and  the  regulations  he 
adopted  were  not  those  prescribed  by  law,  but  by  the  President 
in  his  character  as  commander-iu-chief." 

It  is  established  by  these  opinions  that  military  or 
ders  in  accordance  with  martial  law  or  the  laws  of  war, 
though  they  may  be  contrary  to  municipal  laws,  and 
the  use  of  the  usual  means  of  enforcing  such  orders  by 
military  power,  including  capture,  arrest,  imprisonment, 
or  the  destruction  of  life  and  property,  are  authorized 
and  sustained  upon  the  firm  basis  of  martial  law, 
which  is,  in  time  of  war,  constitutional  law.  A  mili 
tary  arrest,  being  one  of  the  recognized  necessities 
of  warfare,  is  as  legal  and  constitutional  a  proce 
dure,  under  the  laws  of  war,  as  an  arrest  by  civil  au 
thority,  by  the  sheriff,  after  the  criminal  has  been 
indicted  by  a  grand  jury  for  a  statute  offence.  In 
time  of  peace,  the  interference  of  military  force  is 
offensive  to  a  free  people.  Its  decrees  seem  overbear- 

*  9  Howard,  615. 

24 


186  MILITARY    ARRESTS    IN    TIME    OF   WAR. 

ing,  and  its  procedures  violent.  It  has  few  safeguards 
and  no  restraints.  The  genius  of  republican  govern 
ment  revolts  against  permanent  military  rule.  Hence 
the  suspicions  of  the  people  are  easily  aroused  upon 
any  appearance  of  usurpation.  It  is  for  this  reason  that 
some  opponents  of  the  government  have  endeavored  to 
cripple  the  war  power  of  the  President,  by  exciting  a 
natural  but  unfounded  apprehension  that  military  ar 
rests,  a  familiar  weapon  of  warfare,  can  be  employed 
only  at  the  hazard  of  civil  liberty. 

ON    WHAT   GROUND   FORCE   IS  JUSTIFIABLE. 

When  the  administration  of  laws  is  resisted  by  an 
armed  public  enemy  ;  when  government  is  assaulted 
or  overthrown  ;  when  magistrate  and  ruler  are  alike 
powerless,  the  nation  must  assert  and  maintain  its  rights 
by  force  of  arms.  Government  must  fight  or  perish. 
Self-preservation  requires  the  nation  to  defend  its  rights 
by  military  power.  The  right  to  use  military  power 
rests  on  the  universal  law  of  self-defence. 


MARTIAL   LAW. 


When  war  is  waged,  it  ought  not  to  degenerate  into 
unbridled  brutality,  but  it  should  conform  to  the  dic 
tates  of  justice  and  of  humanity.  Its  objects,  means, 
and  methods  should  be  justifiable  in  the  forum  of  civil 
ized  and  Christian  nations.  The  laws  or  rules  which 
usually  govern  this  use  of  force  are  called  military  and 
martial  law,  or  the  laws  of  war. 

Principles  deducible  from  a  consideration  of  the  na 
ture,  objects,  and  means  of  war  will,  if  understood,  re 
move  from,  the  mind  the  apprehension  of  danger  to  civil 
liberty  from  military  arrests  and  other  employment  of 


MILITARY   ARRESTS   IN  TIME    OP   WAR.  187 

« 

force.  When  war  exists,  whatever  is  done  in  accord 
ance  with  the  laws  of  war  is  not  arbitrary,  and  is  not  in 
derogation  of  the  civil  rights  of  citizens,  but  is  lawful, 
justifiable,  and  indispensable  to  public  safety. 

WAR   POWER   HAS   LIMITS. 

Althc/ugh  the  empire  of  the  war  power  is  vast,  yet  it 
has  definite  boundaries,  wherein  it  is  supreme.  It 
overrides  municipal  laws  and  all  domestic  institutions 
or  relations  which  impede  or  interfere  with  its  com 
plete  sway.  It  reigns  uncontrollable  until  its  legiti 
mate  work  is  executed ;  but  then  it  lays  down  its 
dripping  sword  at  the  feet  of  Justice,  whose  wrongs  it 
has  avenged. 

It  is  not  now  proposed  to  define  the  limits  and  re 
strictions  imposed  by  the  laws  of  warfare  upon  the  gen 
eral  proceedings  of  belligerents!  It  is  to  one  only  of 
the  usual  methods  of  war  that  attention  is  now  di 
rected,  namely,  to  the  capture  and  detention  of  public 
enemies. 

ARRESTS  NECESSARY. 

Effectual  hostilities  could  not  be  prosecuted  without 
exercising  the  right  to  capture  and  imprison  hostile 
persons.  Barbarous  nations  only,  would  justify  the  kill 
ing  of  those  who  might  fall  into  their  power.  It  is  now 
too  late  to  question  the  authority  of  martial  law,  which 
sanctions  the  arrest  and  detention  of  those  who  engage 
in  foreign  or  civil  war.  The  imprisonment  of  such  per 
sons  is  much  more  important  to  the  public  safety  in 
civil,  than  in  international,  warfare. 


188  MILITARY    ARRESTS    IN    TIME    OF    WAR. 


MILITARY   CRIMES. 


Military  crimes,  or  crimes  of  war,  include  all  acts  of 
hostility  to  the  country,  to  the  government,  or  to  any 
department  or  officer  thereof;  to  the  army  or  navy, 
or  to  any  person  employed  therein  :  provided  that  such 
acts  of  hostility  have  the  effect  of  opposing,  embar 
rassing,  defeating,  or  even  of  interfering  with,  our  mili 
tary  or  naval  operations  in  carrying  on  the  war,  or  of 
aiding,  encouraging,  or  supporting  the  enemy. 

According  to  the  laws  of  war,  military  arrests  may 
be  made  for  the  punishment  or  prevention  of  military 
crimes. 


DOUBLE  LIABILITY. 


Such  crimes  may  or  may  not  be  offences  against 
statutes.  The  fact  that  an  act  of  hostility  is  against 
municipal  as  well  as  martial  law,  even  though  it  may 
subject  the  offender  to  indictment  in  civil  tribunals,  does 
not  relieve  him  from  responsibility  to  military  power. 
To  make  civil  war  against  the  United  States  is  to 
commit  treason.  Such  act  of  treason  renders  the 
traitor  liable  to  indictment  and  condemnation  in  the 
courts,  and  to  capture,  arrest,  or  death  on  the  field  of 
battle.  But  because  a  traitor  may  be  hung  as  a  crimi 
nal  by  the  sheriff,  it  does  not  follow  that  he  may  not 
be  captured,  arrested,  or  shot  as  a  public  enemy  by  the 
soldiers.  An  act  of  hostility  may  thus  subject  the  offen 
der  to  twofold  liability ;  first  to  civil,  and  then  to  military 
tribunals.  Whoever  denies  the  right  to  make  military 
arrests  for  crimes  which  are  punishable  by  civil  tribu 
nals,  would  necessarily  withhold  one  of  the  usual  and 


MILITARY   ARRESTS   IN   TIME    OF   WAR.  189 

most  effective  and  essential  means  of  carrying  on  war. 
Whoever  restricts  that  right  to  cases  where  crimes  have 
been  committed  in  violation  of  some  special  statute, 
would  destroy  one  of  the  chief  safeguards  of  public 
.security  and  defence. 

ACTS  MADE  CRIMINAL  BY  A  STATE  OF  WAR. 

The  quality  of  an  act  depends  on  the  time,  place, 
and  circumstances  under  which  it  is  performed.  Acts 
which  would  have  been  harmless  and  innocent  in  time 
of  peace,  become  dangerous,  injurious,  and  guilty  in 
time  of  war.  The  rules  and  regulations  of  the  mili 
tary  service  contain  many  illustrations  of  this  fact. 
For  a  soldier  to  speak  contemptuously  of  a  superior 
officer,  might,  as  between  two  civilians,  be  a  harmless 
or  beneficial  use  of  "free  speech ; "  but  as  in  time  of 
war  such  "  free  speech "  might  destroy  discipline,  en 
courage  disobedience  of  orders,  or  even  break  up  the 
confidence  of  the  soldiers  in  their  commanders,  such 
speaking  is  strictly  forbidden,  and  becomes  a  crime. 
Many  rules  and  regulations  of  our  army  and  navy  are 
such  that  disregard  of  them  in  time  of  peace  would 
be  attended  by  no  important  consequences ;  yet  a 
breach  of  them,  in  time  of  war,  might  become  an  of 
fence  against  martial  law,  such  as  would  lead  to  disas 
trous  results.  In  like  manner,  a  citizen  may  commit 
acts  to  which  he  is  accustomed  in  ordinary  times,  but 
which  become  the  gravest  crimes  in  time  of  war,  al 
though  not  embraced  in  the  civil  penal  code.  Actions 
not  constituting  any  offence  against  the  municipal  code 
of  a  country,  having  become  highly  injurious  and  em 
barrassing  to  military  operations,  may,  and  must,  be 
prevented,  if  not  punished.  Such  actions,  being  crimes 


190  MILITARY   ARRESTS   IN   TIME    OF    WAR. 

against  military  or  martial  law,  or  the  laws  of  war,  can 
be  repressed  only  by  capture  and  confinement  of  the 
offender.  If  an  act  which  interferes  with  military  oper 
ations  is  not  against  municipal  law,  the  greater  is  the 
reason  for  resisting  it  by  martial  law.  And  if  such  an 
act  cannot  be  punished  or  prevented  by  civil  or  crimi 
nal  law,  this  fact  makes  stronger  the  necessity  of  avoid 
ing  its  evil  consequences,  by  arresting  the  offender. 
Absence  of  penal  law  imperatively  demands  the  appli 
cation  of  military  preventive  process,  namely,  the  cap 
ture  of  public  enemies. 

AEREST  OF    INNOCENT  PERSONS. 

Innocent  persons  are,  under  certain  circumstances, 
liable  to  military  arrest  in  time  of  civil  war.  Suppose 
an  army  retreating  from  an  unsuccessful  battle,  and 
desirous  of  concealing  from  the  enemy  its  numbers,  its 
position,  and  the  direction  taken  by  its  forces ;  if,  in  or 
der  to  prevent  these  facts  from  becoming  known  to  their 
pursuers,  the  persons  who  are  met  on  the  retreat  are 
captured  and  carried  away,  can  any  one  doubt  the 
right  of  making  such  arrests?  However  loyal  or 
friendly  those  persons  may  be,  yet,  if  seized  by  a  pur 
suing  enemy,  they  might  be  compelled  to  disclose  facts 
by  which  the  retreating  army  could  be  destroyed. 
Hence,  when  war  exists,  and  the  arrest  and  deten 
tion  of  even  innocent  persons  are  essential  to  the 
success  of  military  operations,  such  arrest  and  de 
tention  are  lawful  and  justifiable.  Suppose  a  loyal 
judge  holding  a  court  in  a  loyal  State,  and  a  wit 
ness  on  the  stand,  who  knows  the  details  of  a  pro 
posed  military  expedition  which  it  would  be  highly 


MILITARY   ARRESTS    IN    TIME    OF   WAR.  191 

injurious  to  the  military  operations  of  the  army 
or  navy  to  have  disclosed  or  made  public;  would  any 
one  doubt  the  right  of  the  military  commander  to 
stop  the  trial  on  the  instant,  and,  if  necessary,  to  im 
prison  the  judge  or  the  witness,  to  prevent  the  knowl 
edge  of  our  military  plans  and  expeditions  from  being 
communicated  to  the  enemy  ?  The  innocence  of  the 
person  who  may,  through  ignorance,  weakness,  or  folly, 
endanger  the  success  of  military  operations,  does  not 
deprive  the  commander  in  the  field,  of  the  power  to 
guard  against  hazard  and  prevent  mischief.  The  true 
principle  is  this  :  a  military  officer  has  the  power,  in 
time  of  war,  to  arrest  and  detain  all  persons  within  the 
field  of  his  command,  who,  he  has  reasonable  cause  to 
believe,  will,  by  being  at  large,  impede  or  endanger  the 
military  operations,  for  the  conduct  of  which  he  is  re 
sponsible.  The  true  test  of  liability  to  arrest  is,  there 
fore,  not  alone  the  guilt  or  innocence  of  the  party  ;  not 
alone  his  nearness  to  or  distance  from  the  places  where 
battles  are  impending;  not  alone  whether  he  is  en 
gaged  in  active  hostilities,  but  whether  his  being  at 
large  will  actually  tend  to  impede,  embarrass,  or  hinder 
our  lawful  military  operations  in  creating,  organizing, 
maintaining,  and  most  effectually  using  the  military 
forces  of  the  country.  Arrests  may  be  made  by  reason 
of  bana  fide  military  necessity,  or  to  punish  or  prevent 
military  crimes ;  no  arrests,  made  under  pretence  of 
the  war  power,  for  other  objects,  are  lawful  or  justifia 
ble.  The  dividing  line  between  civil  liberty  and  mili 
tary  power  is  precisely  here  :  civil  liberty  secures  the 
right  to  freedom  from  arrests,  except  by  civil  process 
in  time  of  peace,  or  by  military  power  when  war  exists, 
and  when  the  exigencies  of  the  case  are  such  that  the 


192  MILITARY    ARRESTS    IN   TIME    OF   WAR. 

arrest  is  required  in  order  to  prevent  embarrassment  or 
injury  to  the  lona  fide  military  operations  of  the  army  or 
navy.  It  is  not  enough  to  authorize  arrests  to  say  that 
ivar  exists,  or  that  it  is  a  time  of  war,  unless  martial  law 
is  declared.  Nor  is  it  necessary,  to  justify  them,  that- 
active  hostilities  should  be  going  on  at  the  place  of  the 
capture.  It  is,  however,  enough  to  justify  an  arrest  in 
any  place,  however  far  removed  from  the  battle-fields  of 
contending  armies,  that  it  is  a  time  of  war,  and  that  the 
arrest  is  required  by  a  lawful  military  court,  to  punish  a 
military  crime,  or  is  necessary  to  prevent  an  act  of  hos 
tility,  or  even  to  avoid  the  danger  that  military  oper 
ations  of  any  description  may  be  impeded,  embar 
rassed,  or  prevented.  In  considering  this  right  of 
capturing  our  enemies,  it  must  be  borne  in  mind  that 
"a  person  taken  and  held  by  the  military  forces, 
whether  before,  or  in,  or  after  a  battle,  or  without  any 
battle  at  all,  is  virtually  a  prisoner  of  war.  No  matter 
what  his  alleged  offence,  whether  he  is  a  rebel,  a  traitor, 
a  spy,  or  an  enemy  in  arms ;  he  is  to  be  held  and  pun 
ished  according  to  the  laws  of  war,  for  these  have  been 
substituted  for  the  laws  of  peace." 

CAUSES  OF   ARREST  CANNOT  BE  SAFELY  DISCLOSED. 

It  cannot  be  expected,  when  government  finds  it 
necessary  to  make  arrests  for  causes  which  exist  dur 
ing  civil  war,  that  the  reasons  for  making  such  arrests 
should  be  at  once  made  public ;  otherwise  the  purpose 
for  which  an  arrest  is  made  might  be  defeated.  Thus, 
if  a  conspiracy  has  been  formed  to  commit  hostilities, 
and  one  conspirator  is  arrested,  publishing  the  facts 
might  enable  other  conspirators,  taking  advantage  of 
their  information,  to  escape.  It  may  be  necessary  to 


MILITARY    ARRESTS    IN   TIME   OF   WAR.  193 

make  arrests  on  grounds  justifying  suspicion  of  hostile 
intentions,  when  it  might  be  an  act  of  injustice  to  the 
party  suspected,  if  innocent,  to  publish  the  facts  on 
which  such  suspicions  were  entertained  •  and  if  guilty, 
it  might  disable  the  government  from  obtaining  proof 
against  him,  or  from  preventing  the  hostile  act.  Under 
these  circumstances  the  safety  of  civil  liberty  must 
rest  in  the  honesty,  integrity,  and  responsibility  of 
those  who  have  been  for  the  time  clothed  with  the 
high  powers  of  administering  the  government. 

ARRESTS   TO   PREVENT  HOSTILITIES. 

The  best  use  of  armies  and  of  navies  is  not  to  pun 
ish  criminals  for  offences  against  laws,  but  to  prevent 
public  enemies  from  committing  future  hostilities. 
Victory  and  conquest  are  not  for  revenge  of  wrongs, 
but  for  security  of  rights.  Arch  traitors  and  consum 
mate  villains  are  not  those  on  whom  the  avenging 
sword  is  most  apt  to  fall,  but  the  dupes  and  victims  of 
their  crimes  oftenest  bear  the  sharp  catastrophe  of  bat 
tles.  We  arrest  and  hold  an  enemy,  not  to  punish,  but 
to  restrain  him  from  acts  of  hostility ;  we  hang  a  spy 
not  only  to  deter  others  from  committing  a  similar 
offence,  but  chiefly  to  prevent  his  betraying  us  to  the 
enemy.  We  capture  and  destroy  the  property  even  of 
friends,  if  exposed  in  an  enemy's  country,  not  to  injure 
those  who  wish  us  well,  but  to  withdraw  their  property 
from  liability  to  be  used  by  our  opponents.  In  a 
defensive  civil  war,  many,  if  not  most  military  oper 
ations  have  for  their  legitimate  object  the  prevention 
of  acts  of  hostility.  In  case  of  foreign  war,  an  act  of 
Congress  provides  that  to  prevent  hostilities  by  aliens, 
they  may  be  arrested.  In  case  of — 
25 


194  MILITARY    ARRESTS    IN   TIME    OF   WAR. 

"declared  war  between  the  United  States  and  any  foreign 
nation,  or  of  any  invasion  or  predatory  incursion  being  attempted 
or  threatened  against  any  territory  of  the  United  States  by  any 
foreign  government,  if  the  President  shall  make  public  proclama 
tion  of  the  event,  all  natives,  citizens,  denizens,  or  subjects  of  the 
hostile  nation  or'government,  being  males  of  the  age  of  fourteen 
years  and  upwards,  who  shall  be  within  the  United  States  and 
not  actually  naturalized,  shall  be  liable  to  be  apprehended,  re 
strained,  secured,  and  removed  as  alien  enemies" 

"Power  over  this  subject  is  given  to  the  President,  having  due 
regard  to  treaty  stipulations,  by  the  act  of  the  6th  of  July,  1798 ; 
and  by  this  act  the  President  was  authorized  to  direct  the  con 
finement  of  aliens,  although  such  confinement  was  not  for  the 
purpose  of  removing  them  from  the  United  States,  and  means 
were  conferred  on  him  to  enforce  his  orders,  and  it  was  not  neces 
sary  that  any  judicial  means  should  be  called  in  to  enforce  the 
regulations  of  the  President."  * 

Thus  express  power  is  given  by  statute  to  the  Presi 
dent  to  make  military  arrests  of  innocent  foreign-born 
persons,  under  the  circumstances  above  stated,  for  the 
purpose  of  preventing  them  from  taking  part  in  the  con 
test.  While  this  ample  authority  is  given  to  the  com 
mand  er-in-chief  to  arrest  the  persons  of  aliens  residing 
here,  as  a  precautionary  measure,  a  far  greater  power 
over  the  persons  of  our  own  citizens  is,  for  the  same 
reason,  given  to  the  President  in  case  of  public  danger. 
The  law  of  Congress  (1795)  provides  that  the  army 
may  be  called  into  actual  service  not  only  in  cases  of 
foreign  invasion,  but  when  there  is  danger  of  invasion. 
The  President  of  the  United  States  is  the  sole  arbi 
ter  of  the  question  whether  such  danger  exists,  and 
he  alone  can  call  into  action  the  proper  force  to  meet 
it.  He  is  the  sole  judge  as  to  the  place  where  the 
danger  is,  and  he  has  a  right  to  march  his  troops  there, 
in  whatever  State  or  Territory  it  may  be  apprehended. 

*  Lochington  v.  Smith,  Peters,  C.  C.  Rep.  466. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  195 

He  may  issue  orders  to  his  army  to  take  such  military 
measures  as  may,  in  his  judgment,  be  necessary  for 
public  safety,  whether  these  measures  require  the  de 
struction  of  public  or  private  property,  the  arrest  or 
capture  of  persons,  or  other  speedy  and  effectual  mili 
tary  operations  sanctioned  by  the  laws  of  war.  He 
may  thus  subject  vast  numbers  of  citizens  to  military 
duty  under  all  the  severity  of  martial  law,  whereby 
they  are  required  to  act  under  restraints  more  severe, 
and  to  incur  dangers  more  formidable,  than  any  mere 
arrest  and  detention  in  a  safe  place  for  a  limited  time. 
Such  is  the  power  of  the  President  under  the  Consti 
tution,  and  such  is  the  lawful  mode  of  applying  it, 
according  to  the  principles  announced  by  the  Supreme 
Court  of  the  United  States  in  the  case  of  Martin  v. 
Mott,*  and  affirmed  in  that  of  Luther  v.  Borden.~j* 
It  is  therefore  now  held  as  well  settled  law  that, 
in  time  of  civil  war  in  a  State,  the  apprehension  of 
danger,  and  the  right  to  use  military  power  to  pre 
vent  it,  and  to  restrain  the  public  enemy,  are  held 
to  justify  the  violation  of  rights  of  person  and  prop 
erty,  invariably  held  sacred  and  inviolable  in  time 
of  peace. 

MILITARY   ARRESTS   MADE    BY  ALL  GOVERNMENTS  IN   CIVIL  WAR. 

Capture  of  men  and  seizures  of  property  are,  all 
over  the  world,  among  the  familiar  proceedings  of  bel 
ligerents.  No  existing  government  has  ever  hesitated, 
while  civil  war  was  raging,  to  make  military  arrests. 

*  12  Wheaton's  Reports,  p.  28. 
t  8  Howard's  Reports,  p.  1. 


196  MILITARY   ARRESTS    IN   TIME    OF    WAR. 

Nor  could  warlike  operations  be  successfully  conducted 
without  a  frequent  use  of  the  power  to  take  and  re 
strain  hostile  persons.  Such  is  the  lesson  taught  by 
the  history  of  England  and  France.  While  the  laws 
of  war  place  in  the  hands  of  military  commanders  the 
power  to  capture,  arrest,  and  imprison  the  army  of  the 
enemy,  it  would  be  unreasonable  not  to  authorize  them 
to  capture  a  hostile  individual,  when  his  going  at  large 
would  endanger  the  success  of  military  operations.  To 
carry  on  war  with  no  right  to  seize  and  hold  prisoners 
would  be  as  impracticable  as  to  carry  on  the  adminis 
tration  of  criminal  law  with  no  right  to  arrest  and  im 
prison  culprits.* 

PECULIAR  NECESSITIES   OF  CIVIL  WAR. 

In  foreign  wars,  where  the  belligerents  are  separated 
by  territorial  boundaries,  or  by  difference  of  language, 
there  is  little  difficulty  in  distinguishing  friend  from 
foe.  But  in  civil  war,  those  who  are  now  antagonists, 
but  yesterday  walked  in  the  same  paths,  gathered 
around  the  same  fireside,  worshipped  at  the  same 
altar  ;  there  is  no  means  of  separating  friend  from 

*  See  Keys  v.  Tod.  Note,  p.  223.  Judge  Dickey  says,  "  It  is  not  controverted  but 
that  the  commander  of  an  army  may  exercise,  in  proper  cases,  the  power  in  question, 
over  both  property  and  person,  within  the  territory  and  its  vicinity  under  the  control  of 
the  army,  although  martial  law  has  not  been  declared,  nor  the  civil  law  entirely  sus 
pended.  What  is  it,  then,  but  a  partial  exercise  of  martial  law?  And  what  gives  the 
right  but  a  military  necessity,  or  emergency  ?  And  from  what  source  does  the  power 
come,  if  not  from  the  President,  as  commander-in-chief  ?  Now,  what  good  reason  can 
there  be  for  confining  the  power  to  and  within  the  lines  of  the  army,  provided  a  like 
urgent  necessity  and  emergency  arises  or  exists  at  any  other  point  outride  of  the  lines  of 
the  army,  and  within  the  territory  of  the  government  or  nation  ?  What  is  the  theatre  of 
the  present  war  in  this  country  ?  Is  it  only  that  portion  of  the  country  included  within 
the  lines  of  the  armies,  which  extend  from  the  Chesapeake  Bay  to  the  spurs  of  the  Rocky 
Mountains  ?  or  is  it  not  rather  the  whole  nation,  the  loyal  States  upon  the  one  side,  and 
the  disloyal  upon  the  other  ?  and  are  not  all  within  the  vicinity  of  the  lines  of  the  armies, 
as  far  as  that  vicinity  is  to  be  considered  as  affecting  the  exercise  of  the  authority  in 
dispute?" 


MILITARY   ARRESTS   IN   TIME   OF    WAR.  197 

foe,  except  by  the  single  test  of  loyalty,  or  hostility 
to  the  government. 

WHO  OUGHT  AND  WHO  OUGHT 'NOT  TO  BE  ARRESTED. 

All  persons  who  act  as  public  enemies,  and  all  who 
by  word  or  deed  give  reasonable  cause  to  believe  that 
they  intend  to  act  as  such,  may  lawfully  be  arrested  and 
detained  by  military  authority,  for  the  purpose  of  pre 
venting  the  consequences  of  their  acts.  No  person 
in  a  loyal  State  can  rightfully  be  captured  or  detained 
unless  he  has  engaged,  or  there  is  reasonable  cause 
to  believe  that  he  intends  to  engage,  in  acts  of  hostility 
to  the  United  States,  that  is  to  say,  in  acts  which  may 
tend  to  impede  or  embarrass  the  United  States  in 
such  military  proceedings  as  the  commander-in-chief 
may  rightfully  institute. 

MARKS  OF  HOSTILITY. 

It  is  a  sentiment  of  hostility  which  in  time  of  war 
seeks  to  overthrow  the  government,  to  cripple  its 
powers  of  self-defence,  to  destroy  or  depreciate  its  re 
sources,  to  undermine  confidence  in  its  capacity  or  its 
integrity,  to  diminish,  demoralize,  or  destroy  its  armies, 
or  to  break  down  confidence  in  those  who  are  intrusted 
with  its  military  operations  in  the  field.  He  is  a  pub 
lic  enemy  who  seeks  falsely  to  exalt  the  motives,  char 
acter  and  capacity  of  armed  traitors,  to  magnify  their 
resources,  to  encourage  their  efforts  by  sowing  dissen 
sions  at  home,  or  by  inviting  intervention  of  foreign 
powers  in  our  affairs.  He  who  overrates  the  success, 
increases  the  confidence,  and  encourages  the  hopes  of 
our  adversaries,  or  underrates,  diminishes  or  weakens 
our  own,  and  he  who  seeks  false  causes  of  complaint 


198  MILITARY    ARRESTS    IN   TIME   OF   WAR. 

against  the  officers  of  our  government,  or  inflames 
party  spirit  among  ourselves,  for  the  purpose  of  impair 
ing  or  destroying  our  power  to  suppress  rebellion,  gives 
to  our  enemies  that  moral  support  which  is  more  val 
uable  to  them  than  regiments  of  soldiers  or  millions  of 
dollars.  All  these  ways  and  means  of  aiding  a  public 
enemy  ought  to  be  prevented  or  punished.  But  the  con 
nections  between  citizens  residing  in  different  sections  of 
the  country  are  so  intimate,  the  divisions  of  opinion  on 
political  or  military  questions  are  so  numerous,  the  bal 
ance  of  affection,  of  interest,  and  of  loyalty  is  so  nice  in 
many  instances,  that  civil  war,  like  that  which  darkens 
the  United  States,  is  fraught  with  peculiar  dangers, 
requires  unusual  precautions,  and  warrants  and  demands 
the  most  thorough  and  unhesitating  measures  for  pre 
venting  acts  of  hostility,  and  for  the  security  of  public 
safety. 

INSTANCES   OF  ACTS   OF  HOSTILITY. 

Among  hostile  proceedings,  which,  in  addition  to 
those  already  suggested,  justify  military  arrests,  may 
be  mentioned  contraband  trade  with  hostile  districts, 
or  commercial  intercourse  with  them  when  forbidden  by 
statutes  or  by  military  orders ;  *  aiding  the  enemy  by 
furnishing  them  with  information  which  may  be  useful 
to  them ;  correspondence  with  foreign  authorities  with 
a  view  to  impede  or  unfavorably  affect  the  negotia 
tions  or  interests  of  the  government ;  f  enticing  sol 
diers  or  sailors  to  desertion ;  prevention  of  enlist 
ments;  obstructing  officers  whose  duty  it  is  to 


*  See  acts  June  13,  1861,  May  20,  1802,  and  March  12,  1863. 
t  See  act  February  12,  1863,  chap.  60. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  199 

ascertain  the  names  of  persons  liable  to  do  military 
duty,  and  to  enroll  them ;  resistance  to  the  draft,  to 
the  organization  or  to  the  movements  of  soldiers;  and 
aiding  or  assisting  persons  to  escape  from  their  mili 
tary  duty,  by  concealing  them  in  the  country  or  trans 
porting  them  away  from  it. 

NECESSITY  OF  POWER  TO  ARREST  THOSE  WHO  RESIST  DRAFT. 

The  ability  to  create  and  organize  armies  is  the 
foundation  of  all  power  to  suppress  rebellion  and 
repel  invasion,  or  to  execute  the  laws  and  support 
the  Constitution,  when  they  are  assailed.  Without 
the  power  to  capture  or  arrest  those  who  oppose  the 
draft,  no  army  can  be  raised.  The  necessity  of  such 
arrests  is  recognized  by  Congress  in  the  75th  chapter 
of  the  act  of  March  3,  1863,  for  "  enrolling  the  forces 
of  the  United  States,  and  for  other  purposes,"  which 
provides  for  the  arrest  and  punishment  of  those  who 
oppose  the  draft.  This  provision  is  an  essential  part 
of  the  general  system  for  raising  an  army,  embodied 
in  that  statute.  Those  citizens  who  are  secretly  hos 
tile  to  the  Union  may  attempt  to  prevent  the  board  of 
enrolment  from  proceeding  with  the  draft,  or  may  re 
fuse,  when  drafted,  to  enter  the  service.  Our  military 
forces  may  rightfully  be  called  upon  to  protect  the 
lawful  measures  by  which  our  armies  are  created.  If 
the  judiciary  only  could  be  relied  on,  to  overcome 
those  who  resist  the  draft,  then  the  power  to  raise  ar 
mies  would  depend,  in  the  last  resort,  upon  the  physical 
force  which  the  judges  could  or  would  apply  to  the 
execution  of  their  mandates.  Thus,  if  the  posse  comitatus 
should  not  be  able  or  willing  to  overpower  those  who 


200  MILITARY   ARRESTS    IN    TIME    OF   WAR. 

oppose  the  draft,  then  no  law  could  be  enforced  other 
than  mob  law  and  lynch  law.  If  the  power  to  raise 
armies  be  denied,  the  government  will  be  broken  down; 
and  because  we  are  too  anxious  to  secure  the  supposed 
rights  of  certain  individuals,  all  our  rights  will  be 
trampled  under  foot. 

TERRITORIAL   EXTENT  OF  MARTIAL  AND   MILITARY  LAW. 

It  is  said  that  martial  law  must  be  confined  to  the 
immediate  field  of  action  of  the  contending  armies, 
while  in  districts  remote  from  battle-fields  it  has  no 
force.  Let  us  see  the  difficulty  of  this  view.  Is  mar 
tial  law  to  be  enforced  only  where  the  movements 
of  our  enemy  may  carry  it  ?  Do  we  lose  our  mili 
tary  control  of  a  district  when  the  enemy  have  passed 
through  and  beyond  it  ?  Is  not  martial  law  in  force 
between  the  base  of  operations  of  our  army  and  the 
enemy's  lines,  even  though  it  be  a  thousand  miles 
from  one  to  the  other  ?  Must  there  be  two  contend 
ing  armies  at  close  quarters  with  each  other,  in  order 
to  sanction  the  use  of  martial  law?  If  not,  can  judges 
determine  by  rules  of  law,  the  distance  which  must 
intervene  between  the  hostile  forces  before  that  law 
will  cease  to  have  effect  ?  Has  not  every  army,  where 
soever  it  marches,  power  to  enforce  the  laws  of  war  ? 
If  a  regiment  of  cavalry  is  stationed  far  from  the 
scene  of  active  military  operations,  or  if  a  single  file 
of  soldiers  is  acting  under  a  commanding  officer,  are 
they  not  governed  by  the  same  law  ?  Have  they  not 
power,  wherever  they  may  be,  to  capture  the  enemy  ? 
Who  is  the  enemy  ?  Whoever  makes  war.  Who 
makes  war  ?  Whoever  aids  and  comforts  the  rebels 


MILITARY   ARRESTS   IN   TIME   OF   WAR.  201 

commits  treason ;  therefore  he  makes  war.*  A  raid 
into  a  Northern  State,  with  arms,  is  no  more  an  act  of 
hostility  than  a  conspiracy  to  aid  the  enemy  by  North 
ern  men  in  Northern  States.  Whether  the  enemy  is 
an  army,  a  regiment,  or  a  single  man,  be  the  number 
of  persons  more  or  less,  it  is  still  the  enemy. 

All  drafts  of  soldiers  are  made  in  places  remote  from 
the  field  of  conflict.  If  no  arrest  can  be  made  there, 
then  the  formation  of  the  army  can  be  prevented.  Can 
a  spy  be  arrested  by  martial  law  ?  Formerly  there  was 
no  law  of  the  United  States  against  spies  outside  of 
camps.  There  was  nothing  but  martial  law  against 
them.  A  spy  from  the  rebel  army,  no  one  could  doubt, 
should  be  arrested.  Why  should  not  a  spy  from  the 
Northern  States  be  arrested?  It  is  obvious  that  the 
President,  if  deprived  of  the  power  to  seize  or  capture 
the  enemy,  wherever  they  may  be  found,  whether  re 
mote  from  the  field  of  hostilities  or  near  to  it,  cannot 
effectually  suppress  the  rebellion.  Stonewall  Jackson, 
it  is  said,  visited  Baltimore  a  few  months  since  in  dis 
guise.  While  there,  it  is  not  known  that  he  com 
mitted  any  breach  of  the  laws  of  Maryland  or  of  the 
United  States.  Could  he  not  have  been  captured,  if  he 
had  been  found,  by  the  order  of  the  President?  If 
captured,  could  the  State  court  of  Maryland  have  or 
dered  him  to  be  surrendered  to  its  judge,  and  so  turned 
loose  again  ?  f  Where  is  the  limit  within  which  the 
military  power  of  the  commander  of  the  army  must  be 
confined,  in  making  war  against  the  enemy  ?  Wher 
ever  military  operations  are  actually  extended,  there 
is  martial  law.  Whenever  a  person  is  helping  the 

*  See  Index,  "  Treason." 

t  Sec  Million's  case,  p.  530,  and  remarks  upon  it  in  Notes  to  Forty-third  Edition,  p.  460. 

26 


202  MILITARY    ARRESTS    IN   TIME   OF   WAR. 

enemy,  then  he  may  be  taken  as  an  enemy ;  wherever 
such  capture  is  made,  there  war  is  going  on,  there 
martial  law  is  inaugurated,  so  far  as  that  capture  is 
concerned. 


HABEAS  CORPUS.* 


The  military  or  executive  power  to  prevent  prisoners 
of  war  from  being  subject  to  discharge  by  civil  tribu 
nals,  or,  in  other  words,  the  power  to  suspend,  as  to 
these  prisoners,  the  privilege  of  habeas  corpus,  is  an  es 
sential  means  of  suppressing  the  rebellion  and  provid 
ing  for  the  public  safety,  and  is  therefore,  by  neces 
sary  implication,  conferred  by  the  Constitution  on  that 
department  of  government  to  which  belongs  the  duty 
of  suppressing  rebellion  by  force  of  arms,  in  time  of 
war.  In  times  of  civil  war  or  rebellion,  it  is  the  duty 
of  the  President  to  call  out  the  army  and  navy  to  sup 
press  it.  To  use  the  army  effectually  for  that  purpose, 
it  is  essential  that  the  commanders  should  have  the 
power  of  retaining  in  their  control  all  persons  captured 
and  held  in  prison. 

It  must  be  presumed  that  the  powers  necessary  to 
execute  the  duties  of  the  President  are  conferred  on 
him  by  the  Constitution.  Hence  he  must  have  the 
power  to  hold  whatever  persons  he  has  a  right  to  cap 
ture,  without  interference  of  courts,  during  the  war,  and 
he  has  the  right  to  capture  all  persons  who,  he  has  rea 
sonable  cause  to  believe,  are  hostile  to  the  Union,  and 
are  engaged  in  hostile  acts.  The  power  is  to  be  exer 
cised  in  emergencies.  It  is  to  be  used  suddenly.  The 
facts  on  which  public  safety  in  time  of  civil  war  de 
pends  can  be  known  only  to  the  military  men,  and  not, 

*  The  privilege  of  the  writ  of  habeas  corpus  was  suspended  by  the  Confederate  Con 
gress  by  act  1864,  chap.  38. 


MILITARY   ARRESTS    IN   TIME   OF   WAR.  203 

under  ordinary  circumstances,  to  the  legislatures.  To 
pass  a  law  as  to  each  prisoner's  case,  whenever  pub 
lic  safety  should  require  the  privilege  of  the  writ 
to  be  suspended,  would  be  impracticable.  Shall 
there  be  no  power  to  suspend  the  writ,  as  to  any 
single  person  in  all  the  Northern  States,  unless  Con 
gress  pass  a  law  depriving  all  persons  of  that  privi 
lege  ?  Oftentimes  the  exposure  of  the  facts  and  cir 
cumstances  requiring  the  suspension  in  one  case  would 
be  injurious  to  the  public  service  by  betraying  our  se 
crets  to  the  enemy.  Few  acts  of  hostility  are  more 
dangerous  to  public  safety,  none  require  a  more  severe 
treatment,  either  to  preventer  to  punish,  than  an  at 
tempt  to  interfere  with  the  formation  of  the  army  by 
obstructing  enlistments,  by  procuring  desertions,  or  by 
aiding  and  assisting  persons  liable  to  do  military  duty 
in  escaping  from  the  performance  of  it.  Military  arrest 
and  confinement  in  prison  during  the  war  are  but  a 
light  punishment  for  a  crime  which,  if  successful,  would 
place  the  country  in  the  power  of  its  enemies,  and  sac 
rifice  the  lives  of  soldiers  now  in  the  field,  for  want  of 
support.  Whoever  keeps  back  the  volunteers  from 
our  army  strikes  at  the  heart  of  the  country.  All 
those  proceedings  which  tend  to  break  down  the 
army  when  in  the  field,  or  to  prevent  or  impede  any 
step  necessary  to  be  taken  to  collect  and  organize  it, 
are  acts  of  hostility  which  directly  tend  to  impede 
the  military  operations  on  which  the  preservation  of 
the  government,  in  time  of  war,  depends.  All  per 
sons  who  commit  such  acts  are  subject  to  military 
arrest  and  detention ;  and  if  they  are  at  the  same 
time  liable  to  prosecutions  for  violation  of  municipal 


204  MILITARY   ARRESTS    IN   TIME    OF   WAR. 

laws,  that  fact  cannot  shelter  them  from  liability 
to  be  treated  as  public  enemies,  and  to  be  arrested 
and  detained,  so  as  to  prevent  them  from  perpetrat 
ing  any  further  hostile  acts. 

In  determining  the  character  of  acts  committed  in 
the  free  States  by  persons  known  to  be.  opposed  to 
the  war,  it  must  be  borne  in  mind  that  those  who, 
in  the  loyal  States,  aid  and  comfort  the  enemy,  are 
partakers  in  the  crime  of  rebellion  as  essentially  as 
if  present  with  rebel  armies.  They  are  in  law  parti- 
cipes  criminis.  Though  their  overt  acts,  taken  alone 
and  without  connection  with  the  rebellion,  might  not 
amount  to  treason,  or  to  any  crime,  yet  under  the 
circumstances,  many  of  these  acts,  otherwise  inno 
cent,  become  dangerous,  injurious,  and  criminal.  A 
person  who,  by  his  mere  presence,  lends  support 
and  gives  confidence  to  a  murderer  while  perpetrat 
ing  his  foul  crime,  shares  in  that  crime,  whether  he 
is  at  the  time  of  the  murder  in  the  actual  presence 
of  his  victim,  or  stands  off  at  a  distance,  and  is  ready 
to  warn  the  cutthroat  of  the  approach  of  danger. 
Such  was  the  rule  administered  in  the  trial  of  Knapp 
for  murdering  a  citizen  of  Massachusetts.  This  is 
familiar  law.  What  difference  does  it  make  whether 
the  conspirator  is  near,  or  far  away  from,  his  associates  ; 
whether  he  is  in  a  slave  or  a  free  State  ?  The  real 
question  is  whether  the  person  accused  has  given  or 
means  to  give  aid  or  comfort  to  the  enemy  of  his 
country,  whether  near  by  or  far  off;  if  so,  then  he  is  . 
an  enemy,  and  may  be  captured  on  the  doorsteps  of  a 
court-house,  or  even  on  the  bench  itself. 


MILITARY   ARRESTS   IN   TIME    OF   WAR.  205 


CONSTITUTIONALITY  OF  THE  ENROLMENT  ACT  OF  MARCH  3,   1863. 

No  power  to  arrest  or  detain  prisoners  can  be  con 
ferred  upon  the  President  or  his  provost  marshals  by 
an  act  of  Congress  which  is  void  because  unconstitu 
tional.  No  person  can  be  civilly  or  criminally  liable 
to  imprisonment  for  violation  of  a  void  statute.  Hence 
the  question  may  arise  whether  the  enrolment  act  is  a 
legitimate  exercise  by  Congress  of  powers  conferred 
upon  it  by  the  Constitution.  That  Congress  has  full 
power  to  pass  the  enrolment  act  is  beyond  reasonable 
doubt,  as  will  be  apparent  from  the  following  refer 
ences  :  *  — 

The  Constitution,  article  1,  section  8,  clause  12,  gives 
to  Congress  the  power  "  to  raise  and  support  armies." 
It  must  be  observed  that  the  Constitution  recog 
nizes  a  clear  distinction  between  the  army  of  the  United 
States  and  the  militia  of  the  several  States,  even 
when  called  into  actual  service.  Thus,  by  article  2, 
section  2,  clause  1, "  The  President  shall  be  commander- 
in-chief  of  the  army  and  navy  of  the  United  States, 
and  of  the  militia  of  the  several  States,  when  called 
into  the  actual  service  of  the  United  States."  By  ar 
ticle  1,  section  8,  clause  15,  Congress  has  power  "to 
provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections  and  repel 
invasions."  By  article  1,  section  8,  clause  16,  Congress 
has  power  "  to  provide  for  organizing,  arming,  and  dis 
ciplining  the  militia,  and  for  governing  such  part  of 
them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  States  respectively  the  appoint 
ment  of  the  officers,  and  the  authority  of  training  the 

*  So  decided  in  several  cases  since  the  publication  of  the  first  edition. 


206  MILITARY   ARRESTS   IN   TIME    OF   WAR. 

militia  according  to  the  discipline  prescribed  by  Con 
gress."  In  addition  to  these  powers  of  Congress  to  call 
into  the  service  of  the  Union  the  militia  of  the  States  by 
requisitions  upon  the  respective  governors  thereof,  the 
Constitution  confers  upon  Congress  another  distinct, 
independent  power,  by  article  1,  section  8,  clause  12, 
which  provides  that  Congress  shall  have  power  "  to 
raise  and  support  armies,  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years." 
By  article  1,  section  8,  clause  14,  Congress  has  power 
to  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces.  Article  1,  section  8,  clause  18, 
gives  Congress  power  "  to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or 
in  any  department  or  officer  thereof."  The  statutes 
of  1795,  and  other  recent  acts  of  1861  and  1862, 
authorizing  the  enlistment  of  volunteers,  were  mainly 
founded  on  the  power  to  receive  militia  of  the  States 
into  the  service  of  the  Union,  and  troops  were  raised 
principally  through  the  agency  of  governors  of  States. 
The  enrolment  act  of  1863  is  an  exercise  of  power 
conferred  upon  Congress,  to  "  raise  and  support  ar 
mies,"  *  and  not  of  the  power  to  call  out  the  militia 
of  the  States.  Neither  the  governors  nor  other  State 
authorities  have  any  official  functions  to  perform  in  re 
lation  to  this  act,  nor  any  right  to  interfere  with  it. 
It  is  an  act  of  the  United  States,  to  be  administered 
by  United  States  officers,  applicable  to  citizens  of  the 
United  States  in  the  same  way  as  all  other  national 
laws.  The  confounding  of  these  separate  powers  of 

*  See  Note  to  Forty-third  Edition  (No.  12),  explanatory  of  this  statute. 


MILITARY   ARRESTS    IN   TIME    OF   WAR.  207 

Congress  and  the  rights  and  proceedings  derived  from 
them  has  been  a  prolific  source  of  error  and  misappre 
hension. 

RULES  OF  INTERPRETATION  AND  THEIR  APPLICATION  TO  THIS  ACT. 

The  Constitution,  as  above  cited,  provides  that  Con 
gress  shall  have  power  to  pass  "  all  laws  necessary  and 
proper"  for  carrying  into  execution  all  the  powers 
granted  to  the  government  of  the  United  States,  or 
any  department  or  officer  thereof.  The  word  "  neces 
sary,"  as  used,  is  not  limited  by  the  additional  word 
"  proper,"  but  is  enlarged  thereby. 

"  The  authorities  essential  to  the  care  of  the  common  defence 
are  these  :  To  raise  armies ;  to  build  and  equip  fleets ;  to  prescribe 
rules  for  the  government  of  both  ;  to  direct  their  operations ;  to 
provide  for  their  support.  These  powers  ought  to  exist  WITH 
OUT  LIMITATION,  because  it  is  impossible  to  foresee  or  to  define 
the  extent  and  variety  of  national  exigencies,  and  the  correspond 
ent  extent  and  variety  of  the  means  necessary  to  satisfy  them. 
The  circumstances  which  endanger  the  safety  of  nations  are  infi 
nite,  and  for  this  reason  no  constitutional  shackles  can  wisely  be 
imposed  on  the  power  to  which  the  care  of  it  is  committed."  *  * 
"  This  power  ought  to  be  under  the  direction  of  the  same  councils 
which  are  appointed  to  preside  over  the  common  defence"  *  * 
"It  must  be  admitted,  as  a  necessary  consequence,  that  there  can 
be  no  limitation  of  that  authority  which  is  to  provide  for  the  de 
fence  and  protection  of  the  community  in  any  matter  essential  to 
its  efficacy  —  that  is,  in  any  matter  essential  to  the  formation, 
direction,  or  support  of  the  NATIONAL  FORCES."  *  *  "  The 
means  ought  to  be  proportioned  to  the  end ;  the  persons  from 
whose  agency  the  attainment  of  the  end  is  expected  ought  to  pos 
sess  the  means  by  which  it  is  to  be  attained." 

This  opinion  of  Alexander  Hamilton  has  been  con 
firmed  by  the  Supreme  Court  of  the  United  States, 
in  a  decision  made  by  Chief  Justice  Marshall,  and 
quoted  in  a  former  page. 


208  MILITARY    ARRESTS    IN   TIME   OF   WAR. 

"  The  government  of  the  United  States  is  one  of  enumerated 
powers,  and  it  can  exercise  only  the  powers  granted  to  it ;  but 
though  limited  in  its  powers,  it  is  supreme  within  its  sphere  of  ac 
tion.  It  is  the  government  of  the  people  of  the  United  States, 
and  emanated  from  them.  Its  powers  were  delegated  by  all,  and 
it  represents  all,  and  acts  for  all. 

"  There  is  nothing  in  the  Constitution  which  excludes  incidental 
or  implied  powers.  The  articles  of  confederation  gave  nothing  to 
the  United  States  but  what  was  expressly  granted ;  but  the  new 
Constitution  dropped  the  word  expressly,  and  left  the  question 
whether  a  particular  power  was  granted  to  depend  on  a  fair  con 
struction  of  the  whole  instrument.  No  constitution  can  contain 
an  accurate  detail  of  all  the  subdivisions  of  its  powers,  and  all  the 
means  by  which  they  might  be  carried  into  execution.  It  would 
render  it  too  prolix.  Its  nature  requires  that  only  the  great  out 
lines  should  be  marked,  and  its  important  objects  designated,  and 
all  the  minor  ingredients  left  to  be  deduced  from  the  nature  of 
those  objects.  The  sword  and  the  purse,  all  the  external  relations, 
and  no  inconsiderable  portion  of  the  industry  of  the  nation,  were 
intrusted  to  the  general  government ;  and  a  government  intrusted 
with  such  ample  powers,  on  the  due  execution  of  which  the  hap 
piness  and  prosperity  of  the  people  vitally  depended,  must  also  be 
intrusted  with  ample  means  of  their  execution.  Unless  the  words 
imperiously  require  it,  we  ought  not  to  adopt  a  construction  which 
would  impute  to  the  framers  of  the  Constitution,  when  granting 
great  powers  for  the  public  good,  the  intention  of  impeding  their 
exercise  by  withholding  a  choice  of  means.  The  powers  given  to 
the  government  imply  the  ordinary  means  of  execution  ;  and  the 
government,  in  all  sound  reason  and  fair  interpretation,  must  have 
the  choice  of  the  means  which  it  deems  the  most  convenient  and 
appropriate  to  the  execution  of  the  power.  The  Constitution  has 
not  left  the  right  of  Congress  to  employ  the  necessary  means  for 
the  execution  of  its  powers  to  general  reasoning.  Art.  1,  sect.  8, 
of  the  Constitution,  expressly  confers  on  Congress  the  power  'to 
make  all  laws  that  may  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers.' 

"  Congress  may  employ  such  means  and  pass  such  laws  as  it  may 
deem  necessary  to  carry  into  execution  great  powers  granted  by 
the  Constitution ;  and  necessary  means,  in  the  sense  of  the  Con 
stitution,  does  not  import  an  absolute  physical  necessity  so  strong 


MILITARY   ARRESTS   IN   TIME    OF   WAR.  209 

that  one  thing  cannot  exist  without  the  other.  It  stands  for  any 
means  calculated  to  produce  the  end.  The  word  necessary  admits 
of  all  degrees  of  comparison.  A  thing  may  be  necessary,  or  very 
necessary,  or  absolutely  or  indispensably  necessary.  The  word  is 
used  in  various  senses,  and  in  its  construction  the  subject,  the 
context,  the  intention,  are  all  to  be  taken  into  view.  The  powers 
of  the  government  were  given  for  the  welfare  of  the  nation.  They 
were  intended  to  endure  for  ages  to  come,  and  to  be  adapted  to 
the  various  crises  in  human  affairs.  To  prescribe  the  specific 
means  by  which  government  should  in  all  future  time  execute  its 
power,  and  to  confine  the  choice  of  means  to  such  narrow  limits 
as  should  not  leave  it  in  the  power  of  Congress  to  adopt  any 
which  might  be  appropriate  and  conducive  to  the  end,  would  be 
most  unwise  and  pernicious,  because  it  would  be  an  attempt  to 
provide,  by  immutable  rules,  for  exigencies  which,  if  foreseen  at 
all,  must  have  been  foreseen  dimly,  and  would  deprive  the  legisla 
ture  of  the  capacity  to  avail  itself  of  experience,  or  to  exercise  its 
reason,  and  accommodate  its  legislation  to  circumstances.  If  the 
end  be  legitimate,  and  within  the  scope  of  the  Constitution,  all 
means  which  are  appropriate,  and  plainly  adapted  to  this  end,  and 
which  are  not  prohibited  by  the  Constitution,  are  lawful." 

These  authorities  show  that  Congress,  having  the 
power  to  raise  and  support  armies,  has  an  unlimited 
choice  of  means  appropriate  for  carrying  that  power 
into  execution.  The  only  question  is  whether  the  act 
of  March  3,  1863,  is  "plainly  adapted  to  the  end  pro 
posed/'  namely,  "to  raise  an  army?  If  it  is  a  usual 
mode  of  raising  an  army  to  enroll  and  draft  citizens,  or, 
though  unusual,  if  it  is  one  appropriate  mode  by  which 
the  end  may  be  accomplished,  it  is  within  the  con 
stitutional  authority  of  Congress  to  pass  that  law. 

In  a  republic,  the  country  has  a  right  to  the  military 
service  of  every  citizen  and  subject.  The  government 
is  a  government  of  the  people,  and  for  the  safety  of  the 
people.  No  man  who  enjoys  its  protection  can  lawfully 
escape  his  share  of  public  burdens  and  duties.  Public 
27 


210  MILITARY    ARRESTS    IN    TIME    OF    WAR. 

safety  and  welfare  in  time  of  war  depend  wholly  upon 
the  success  of  military  operations.  Whatever  stands  in 
the  way  of  military  success  must  be  sacrificed,  else  all 
is  lost.  The  triumph  of  arms  is  the  tabula  in  naufragio, 
the  last  plank  in  the  shipwreck,  on  which  alone  our 
chance  of  national  life  depends.  Hence,  in  the  struggle 
of  a  great  people  for  existence,  private  rights,  though 
not  to  be  disregarded,  become  comparatively  insignifi 
cant,  and  are  held  subject  to  the  paramount  rights  of 
the  community.  The  life  of  the  nation  must  be  pre 
served  at  all  hazards,  and  the  Constitution  must  not, 
without  imperative  necessity,  be  so  construed  as  to  de 
prive  the  people  of  the  amplest  means  of  self-defence. 
Every  attempt  to  fetter  the  power  of  Congress  to 
call  into  the  field  the  military  forces  of  the  country  in 
time  of  war,  is  only  a  denial  of  the  people's  right  to 
fight  in  their  own  defence.  If  a  foreign  enemy  were 
now  to  invade  the  country,  who  would  dare  to  cavil  at 
the  forms  of  statutes  under  which  the  people  sought  to 
enlist  volunteers  to  repel  the  invader,?  It  must  not 
be  forgotten  that  Congress  has  the  same  power  to-day 
to  raise  and  organize  armies  to  suppress  rebellion,  that 
would  belong  to  it  if  the  Union  were  called  upon  to 
meet  the  world  in  arms. 

INDEMNITY  TO  PERSONS   ARRESTED. 

Persons  who  reside  in  a  country  engaged  in  active 
hostilities,  and  who  so  conduct  themselves  as  to  give 
reasonable  cause  to  believe  that  they  are  aiding  and 
comforting  a  public  enemy,  or  that  they  are  partici 
pating  in  any  of  those  proceedings  which  tend  to  em 
barrass  military  operations,  may  be  arrested  ;  and  if 
such  persons  shall  be  arrested  and  imprisoned  for  the 


MILITARY   ARRESTS    IN   TIME    OP   WAR.  211 

purpose  of  punishing  or  preventing  such  acts  of  hos 
tility,  they  are  not  entitled  to  claim  indemnity  for  the 
injury  to  themselves  or  to  their  property,  suffered  by 
reason  of  such  arrest  and  imprisonment.*  If  the 
persons  so  arrested  are  subjects  of  a  foreign  govern 
ment,  they  cannot  lawfully  claim  indemnity,  because 
their  own  hostile  conduct,  while  it  has  deprived  them 
of  the  shelter  of  "neutrality,"  has  subjected  them 
to  penalties  for  having  violated  the  laws  of  war.f 
If  a  foreigner  join  the  rebels,  he  exposes  himself 
to  the  treatment  of  rebels.  He  can  claim  of  this 
government  no  indemnity  for  wounds  received  in 
battle,  or  for  loss  of  time,  or  for  suffering  by  being  cap 
tured  and  imprisoned.  It  can  make  no  difference 
whether  his  acts  of  hostility  to  the  United  States  are 
committed  in  open  contest  under  a  rebel  flag,  or  in 
the  loyal  States,  where  his  enmity  is  most  danger 
ous.  If  it  be  said  that  he  has  violated  no  municipal 
law,  and  therefore  ought  not  to  be  deprived  of  liberty 
without  indemnity,  it  must  be  remembered  that  if  he 
has  violated  any  of  the  laws  of  war,  he  may  have 
thereby  committed  an  offence  more  dangerous  to  the 
country  and  more  destructive  in  its  consequences 
than  any  crime  defined  in  statutes.  If  a  person, 
detained  in  custody  by  reason  of  his  having  violated 
the  laws  of  war,  and  for  the  purpose  of  prevent 
ing  hostilities,  be  liberated  from  confinement  with 
out  having  been  indicted  by  a  grand  jury,  it  does 
not  follow  therefrom  that  he  has  committed  no  crime. 
He  may  have  been  guilty  of  grave  offences,  while  the 
government  may  not  have  deemed  it  necessary  to 

*  Note  to  Forty-third  Edition.  —  See  indemnity  acts  of  Congress.    Index,  title  "  Enemy, 
t  See  Solicitor's  Opinion  in  Sherwin's  case,  p.  3(35. 


212  MILITARY   ARRESTS    IN   TIME   OF    WAR. 

prosecute  him.  Clemency  and  forbearance  are  not  a 
just  foundation  for  a  claim  of  indemnity.  An  offender 
may  not  have  been  indicted,  because  the  crime  com 
mitted,  being  purely  a  military  crime,  or  crime  against 
martial  law,  may  not  have  come  within  the  jurisdic 
tion  of  civil  tribunals.  The  legality  of  his  arrest  and 
imprisonment  under  martial  law,  justified  by  military 
necessity,  cannot  be  adjudicated  by  civil  tribunals.* 
If  the  person  so  arrested  is  the  subject  of  a  foreign 
power,  and  claims  exemption  from  arrest  and  custody 
for  that  reason,  he  can  have  no  right  to  indemnity 
under  any  circumstances,  by  reason  of  being  an  alien, 
until  such  fact  of  alienage  is  made  known  to  the  govern 
ment.  His  claim  to  indemnity  thereafter  will  depend 
on  a  just  application  of  the  principles  already  stated. 

*  See  Vallandi(jliam>s  case,  p.  338.    See,  also,  Index,  title  "  Judicial  Power." 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  213 


INSTRUCTIONS  OF  THE  WAR  DEPARTMENT  TO  OFFICERS  HAVING 
CHARGE  OF  DESERTERS. 

WAR  DEPARTMENT, 

PROVOST  MARSHAL  GENERAL'S  OFFICE, 

Washington,  D.  C.,  July  1,  1863. 

[CIRCULAR  No.  36.] 

The  following  opinion  of  Hon.  William  Whiting,  Solicitor  of  the 
War  Department,  is  published  for  the  information  and  guidance  of 
all  officers  of  this  Bureau: 

ARREST  OF  DESERTERS HABEAS  CORPUS. 

Opinion. 

It  is  enacted  in  the  7th  section  of  the  act  approved  March  3, 1863, 
entitled  "  An  act  for  enrolling  and  calling  out  the  national  forces,  and 
for  other  purposes,"  that  it  shall  be  the  duty  of  the  Provost  Marshals 
appointed  under  this  act  "to  arrest  all  deserters,  whether  regulars, 
volunteers,  militia  men,  or  persons  called  in'o  the  service  under  this 
or  any  other  act  of  Congress,  wherever  they  may  be  found,  and  to 
send  them  to  the  nearest  military  commander,  or  military  post." 

If  a  writ  of  habeas  corpus  shall  be  issued  by  a  State  court,  and 
served  upon  the  Provost  Marshal  while  he  holds  under  arrest  a 
deserter,  before  he  has  had  opportunity  "to  send  him  to  the  nearest 
military  commander,  or  military  post,"  the  Provost  Marshal  is  not 
at  liberty  to  disregard  that  process.  "  It  is  the  duty  of  the  Marshal, 
or  other  person  having  custody  of  the  prisoner,  to  make  known  to 
the  judge  or  court,  by  a  proper  return,  the  authority  by  which  he 
holds  him  in  custody.  But  after  this  return  is  made,  and  the  State 
judge  or  court  judicially  apprised  that  the  party  is  in  custody  under 
the  authority  of  the  United  States,  they  can  proceed  no  further. 

"  They  then  know  that  the  prisoner  is  within  the  dominion  and 
jurisdiction  of  another  government,  and  that  neither  the  writ  of  habeas 
corpus,  nor  any  other  process  issued  under  State  authority,  can  pass 
over  the  line  of  division  between  the  two  sovereignties.  He  is  then 
within  the  dominion  and  exclusive  jurisdiction  of  the  United  States. 
If  he  has  committed  an  offence  against  their  laws,  their  tribunals 
alone  can  punish  him.  If  he  is  wrongfully  imprisoned,  their  judicial 


214  MILITARY    ARRESTS    IN    TIME    OF    WAR. 

tribunals  can  release  him  and  afford  him  redress.  And  although,  as 
we  have  said,  it  is  the  duty  of  the  Marshal,  or  other  person  holding 
him,  to  make  known,  by  a  proper  return,  the  authority  under  which 
he  retains  him,  it  is,  at  the  same  time,  imperatively  his  duty  to  obey 
the  process  of  the  United  States,  to  hold  the  prisoner  in  custody  un 
der  it,  and  to  refuse  obedience  to  the  mandate  or  process  of  any  other 
government.  And,  consequently,  it  is  his  duty  not  to  take  the 
prisoner,  nor  suffer  him  to  be  taken,  before  a  State  judge  or  court, 
upon  a  habeas  corpus  issued  under  State  authority.  No  State  judge 
or  court,  after  they  are  judicially  informed  that  the  party  is  im 
prisoned  under  the  authority  of  the  United  States,  has  any  right  to 
interfere  with  him,  or  require  him  to  be  brought  before  them.  And 
if  the  authority  of  a  State,  in  the  form  of  judicial  process  or  other 
wise,  should  attempt  to  control  the  Marshal,  or  other  authorized 
officer  or  agent  of  the  United  States,  in  any  respect,  in  the  custody 
of  his  prisoner,  it  would  be  his  duty  to  resist  it,  and  to  call  to  his 
aid  any  force  that  might  be  necessary  to  maintain  the  authority  of 
law  against  illegal  interference.  'No  judicial  process,  whatever  form 
it  may  assume,  can  have  any  lawful  authority  outside  the  limits  of 
the  jurisdiction  of  the  court  or  judge  by  whom  it  is  issued ;  and  an 
attempt  to  enforce  it  beyond  these  boundaries  is  nothing  less  than 
lawless  violence.'" 

The  language  above  cited  is  that  of  Chief  Justice  Taney  in  the 
decision  of  the  Supreme  Court  of  the  United  States  in  the  case  of 
Ableman  vs.  Booth. — (21  Howard's  Reports,  506.) 

If  a  writ  of  habeas  corpus  shall  have  been  sued  out  from  a  State 
court,  and  served  upon  the  Provost  Marshal  while  he  holds  the 
deserter  under  arrest,  and  before  he  has  had  time  or  opportunity  to 
"  send  him  to  the  nearest  military  commander,  or  military  post," 
it  is  the  duty  of  the  Marshal  to  make  to  the  court  a  respectful  state 
ment,  in  writing,  as  a  return  upon  the  writ,  setting  forth  : 

1st.  That  the  respondent  is  Provost  Marshal,  duly  appointed  by 
the  President  of  the  United  States,  in  accordance  with  the  provisions 
of  the  act  aforesaid. 

2d.  That  the  person  held  was  arrested  by  said  Marshal  as  a 
deserter,  in  accordance  with  the  provision  of  the  7th  section  of  the 
act  aforesaid.  That  it  is  the  legal  duty  of  the  respondent  to  deliver 
over  said  deserter  "to  the  nearest  military  commander,  or  military 
post,"  and  that  the  respondent  intends  to  perform  such  duty  as  soon 
as  possible. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  215 

3d.  That  the  production  of  said  deserter  in  court  would  be  incon 
sistent  with,  and  in  violation  of  the  duty  of  the  respondent  as  Provost 
Marshal,  and  that  the  said  deserter  is  now  held  under  authority  of 
the  United  States.  For  these  reasons,  and  without  intending  any 
disrespect  to  the  honorable  judge  who  issued  process,  he  declines  to 
produce  said  deserter,  or  to  subject  him  to  the  process  of  the  court. 

To  the  foregoing  all  other  material  facts  may  be  added. 

Such  return  having  been  made,  the  jurisdiction  of  the  State  court 
over  that  case  ceases.  If  the  State  court  shall  proceed  with  the 
case  and  make  any  formal  judgment  in  it,  except  that  of  dismissal, 
one  of  two  courses  must  be  taken.  (I)  The  case  may  be  carried  up, 
by  appeal  or  otherwise,  to  the  highest  court  of  the  State,  and  re 
moved  therefrom  by  writ  of  error  to  the  Supreme  Court;  or,  (2)  the 
judge  may  be  personally  dealt  with  in  accordance  with  law,  and 
with  such  instructions  as  may  hereafter  be  issued  in  each  case. 

WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

NOTE  A.  —  For  those  who  desire  to  examine  the  practice  and  authorities  on  the  question 
whether  a  government  has  the  right  to  treat  its  citizens  while  engaged  in  civil  war,  as  bel 
ligerents  or  as  subjects,  reference  may  be  had  to  the  following,  viz.:  (Stephens')  Black- 
stone's  Com.,  Vol.  4,  p.  28(5.  Marten's  Essai  concernant  les  Armateurs,  ch.  2,  sect.  11. 
See  17  Geo.  III.  ch.  9  (1777).  Pickering's  Statutes,  Vol.  31,  p.  312.  See  President's  Procla 
mation,  April  19,  18(51.  U.  S.  Stat.  at  Large,  1861,  App.  p.  ii.  See  charge  of  Nelson,  J., 
in  the  report  of  the  trial  of  the  officers,  &c.,  of  The  Savannah,  p.  371.  In  this  case  the  rebel 
privateer  put  in  as  a  defence  his  commission  to  cruise  under  the  Confederate  flag;  and  the 
same  defence  was  made  before  the  United  States  Court  in  Philadelphia  by  other  persons 
indicted  for  piracy.  It  was  held  in  both  of  these  tribunals,  that  they  must  follow  the 
decision  of  the  executive  and  legislative  departments  in  determining  the  political  status  of 
the  Confederate  States ;  and,  that  the  exercise  of  belligerent  rights  by  the  Federal  Gov 
ernment  did  not  imply  any  waiver  or  renunciation  of  its  sovereign  or  municipal  rights, 
or  rights  to  hold  as  subjects  the  belligerent  inhabitants  of  the  seceded  States.  See  the 
report  of  Smith's  Trial,  p.  9(5.  The  pirates  tried  in  New  York  were  not  convicted.  Those 
who  were  convicted  in  Philadelphia  were  not  sentenced,  but,  by  order  of  the  Secretary 
of  State  (January  31,  18(52),  were  sent  to  a  military  prison ,  to  be  exchanged  as  prisoners 
of  war  —  this  being  done  to  avoid  threatened  retaliation. 

See  also  authorities  cited  in  Chapter  II.  p.  44. 

It  has  been  decided  since  the  tenth  edition  was  in  type,  that  citizens  of  States  in  rebel 
lion  are  considered  as  public  enemies,  and  are  not  entitled  to  sue  in  the  courts  of  the  United 
States,  by  Nelson,  J.,  U.  S.  C.  C.,  of  Minnesota.  See  Nash  v.  Dayton.  A  similar  decis 
ion  has  been  made  by  the  Court  of  Appeals  in  Kentucky,  and  has  been  approved  by  Gov 
ernor  JBramlette.  (Sec  his  Message  to  the  House  of  Representatives,  February  13,  18(54.) 

Note  to  Forty-third  Edition.  —  Nor  can  public  enemies  appear  as  claimants  in  a  case  of 
prize.  (  United  States  v.  The  Isaac  Ilemmett,  10  Pits.  Leg.  Jour.,  97;  United  States  v.  Tlie 
Alleghany,  Ib.  276  ;  United  States  v.  One  Hundred  Barrels  of  Cement,  12  Am.  L.  R.  735.) 
In  Mrs.  Alexander's  Cotton  case,  the  Supreme  Court  say,  1864-5  (2  Wallace,  421),  "  A 
public  enemy  can  have  no  standing  in  any  court  of  the  United  States  so  long  as  that 
relation  exists."  See  Appendix,  p.  532. 


216  MILITARY   ARRESTS   IN    TIME    OF   WAR. 


KEES  v.  TOD. 

This  case  has  been  decided  in  Ohio  since  the  seventh 
edition  of  the  "  War  Powers"  went  to  press  :  — 

John  W.  Kees  v ,9.  David  Tod  and  others,  Pickaway  County  Common  Pleas ; 
civil  action.  On  petition  to  remove  the  case,  for  trial,  to  the  United  States 
Circuit  Court. 

The  defendants,  under  the  Act  of  Congress  of  March  3,  1863,  present  a 
sworn  petition,  stating  the  facts,  clearly  within  the  Act,  and  tendering  surety 
as  provided  by  the  Act. 

Section  4  of  the  Act  provides,  "That  any  order  of  the  President,  or  under 
his  authority,  made  at  any  time  during  the  existence  of  the  present  rebellion, 
shall  be  a  defence  in  all  courts  to  any  action  or  prosecution,  civil  or  criminal, 
pending,  or  to  be  commenced,  for  any  search  or  seizure,  arrest  or  imprisonment, 
made,  done,  or  committed,  or  acts  omitted  to  be  done,  under  and  by  virtue  of 
such  order,  or  under  color  of  any  law  of  Congress,  and  such  defence  may  be 
made  by  special  plea,  or  under  the  general  issue." 

Section  5  provides,  "That  if  any  suit  or  prosecution,  civil  or  criminal,  has 
been  or  shall  be  commenced  in  any  State  court  against  any  officer  civil  or 
military,  or  against  any  other  person,  for  any  arrest  or  imprisonment  made,  or 
other  trespasses  or  wrongs  done  or  committed,  or  any  act  omitted  to  be  done, 
at  any  time  during  the  present  rebellion,  by  virtue  or  under  color  of  any 
authority  derived  from  or  exercised  by  or  under  the  President  of  the  United 
States,  or  any  Act  of  Congress,  and  the  defendant  shall,  at  the  time  of  entering 
his  appearance  in  such  court,  or,  if  such  appearance  shall  have  been  entered 
before  the  passage  of  this  Act,  then  at  the  next  session  of  the  court  in  which 
such  suit  or  prosecution  is  pending,  file  a  petition,  stating  the  facts,  and  verified 
by  affidavit,  for  the  removal  of  the  cause  for  trial  at  the  next  Circuit  Court  of 
the  United-  States,  to  be  holden  in  the  district  where  the  suit  is  pending,  and 
offer  good  and  sufficient  surety  for  his  filing  in  such  court,  on  the  first  day  of 
its  session,  copies  of  such  process  or  proceedings  against  him,  and  also  for  his 
appearing  in  such  court,  and  entering  special  bail  in  the  cause,  if  special  bail 
was  originally  required  therein,  it  shall  be  the  duty  of  the  State  court  to 
accept  the  surety,  and  proceed  no  further  in  the  cause  or  prosecution,  and  the 
bail  that  shall  have  been  originally  taken  shall  be  discharged,  and  such  copies 
being  filed,  as  aforesaid,  in  such  court  of  the  United  States,  the  cause  shall 
proceed  therein  in  the  same  manner  as  if  it  had  been  brought  in  said  court  by 
original  process,  whatever  may  be  the  amount  in  dispute  or  the  damages 
claimed,  or  whatever  the  citizenship  of  the  parties,  any  former  "law  to  the  con 
trary  notwithstanding. 

OPINION   OF   JUDGE   DICKEY. 

The  plaintiff  brought  his  action  in  this  court  to  recover  damages  for  an 
alleged  trespass  and  false  imprisonment  by  the  defendants,  and  filed  his  petition 


MILITARY   ARRESTS  IN  TIME   OF   WAR.  217 

on  the  14th  of  September,  1863,  and  caused  summons  to  be  issued  and  served, 
&c.     In  his  petition  he  alleges  that  the  defendants,  on  the  29th  day  of  June, 

1862,  at  the   county  of  Pickaway,  unlawfully  and  maliciously  assaulted  the 
plaintiff,  and  that  the  defendants,  Bliss,  Goodell,  and  Dougherty,  at  the  instance 
and  by  the  procurement  of  the  defendants,  Tod  and  Gregg,  seized   and   laid 
hold  of  the   plaintiff,  and   then  and    there   unlawfully  and   maliciously,  and 
without  any  reasonable   and   probable   cause,    arrested   and   imprisoned   said 
plaintiff,  with  intention  of  having  him  carried  out  of  the   State  of  Ohio  con 
trary  to  the  laws  thereof,   and  that   defendants  Scott  and  Goodell,  then  and 
there,  at  the  instance  and  by  the  procurement  of  the  said  Tod,  Dougherty,  and 
Gregg,  forced  and  compelled  the  said  plaintiff  to  go  from  and  out  of  his  house, 
situate  and  being  in  said  county  of  Pickaway,  into  the  public  street,  and  so  on  ; 
charging   that   they   compelled   him   to    go  out  of  the    State  of  Ohio,  to  the 
military  prison,  called  the    "  Old  Capitol   Prison,"    in    Washington  City,  and 
there  the  defendants  caused  him  to  be  unlawfully  and  maliciously,  and  against 
his  will,  without  reasonable  or  probable  cause,  imprisoned  for  seventeen  days, 
&c.,  to  his  damage,  $30,000. 

On  the  27th  of  October,  1863,  defendants  Tod,  Gregg,  and  Dougherty,  the 
only  defendants  served  with  process,  filed  their  petitions  against  the  plaintiff 
Kees,  stating,  in  substance,  that  the  plaintiff  Kees,  on  the  12th  of  September, 

1863,  filed  his   petition  in  the  court,  and  commenced   a  civil  action  for  the 
wrongs,  injuries,  &c.,  as  stated  in  plaintiff's  petition,  making  reference  to  it  for 
particulars,  and  then  going  on  to  set  forth  that  having  been  summoned,  they 
come  and  enter  their  appearance  to  the  plaintiff's  action,  and  state,  that,  so  far 
as  the  arrest,  imprisonment,  wrongs,  &c.,  -were  committed,  as  alleged  in  plain 
tiffs  petition,  the  same  was  done  during  the  present  rebellion,  about  the  29th 
day  of  June,  1862,  and  prior  to  the  3d  day  of   March,  1863,   by  virtue  and 
under  color  of  authority  derived   from  and  exercised  by  the  President  of  the 
United    States,  and   by  virtue  of  and  under  an  order  issued   from   the  War 
Department  of  the  United  States  (a  copy  of  which  order  is  given). 

The  defendants  then,  after  a  full  statement  of  the  facts  as  they  claim  them, 
relating  to  the  authority,  &c.,  further  state,  that  they,  desiring  to  have  the  case 
removed  to  the  next  Circuit  Court  of  the  United  States,  to  be  holden  at  Cin 
cinnati,  &c.,  come  and  offer  good  and  sufficient  surety,  &c.,  and  then  pray  this 
court  to  accept  the  surety  and  proceed  no  further  in  the  case,  and  to  make 
such  further  order  as  may  be  necessary  for  the  removal  of  the  case  to  the 
Circuit  Court  of  the  United  States. 

The  following  is  the  order  of  the  War  Department  referred  to  : 

WAR  DEPARTMENT,  WASHINGTON,  D.  C., 

June  27,  1862. 

SIR  :  Proceed,  with  one  assistant,  by  first  train,  to  Circleville,  in  the  State 
of  Ohio,  arrest  there,  or  wherever  else  he  may  be  found,  John  W.  Kees,  editor 
and  publisher  of  the  "  Circleville  Watchman,"  and  deliver  him  to  the  com 
mandant  at  Camp  Chase,  permitting  no  communication  with  him  except  by 
yourself,  and  your  subordinates  charged  with  his  safe  keeping,  and,  if  you  think 
fit,  by  his  family  in  your  presence.  Examine  all  papers,  private  or  otherwise, 

28 


218  MILITARY    ARRESTS   IN  TIME   OF   WAR. 

found  at  the  office  of  the  paper,  the  residence  of  Kees,  or  on  his  person,  and 
bring  with  you  to  the  department  all  that  may  be  found  of  a  treasonable  or 
suspinious  nature,  as  well  as  a  copy  of  each  issue  of  the  "  Watchman"  during 
the  last  four  months.  Close  the  office,  locking  up  the  presses,  type,  paper, 
and  other  material  found  therein,  and  place  it  in  charge  of  a  discreet  and 
trustworthy  person,  who  will  see  that  it  is  safely  kept.  If  you  think  any 
further  aid  will  be  necessary,  call  on  Governor  Tod,  at  Columbus,  who  will  be 
requested  to  give  you  such  information  and  aid  as  you  may  think  needful  in 
enabling  you  to  fulfil  your  duty. 

Let  this  order   be  executed   promptly,  discreetly,  and  quietly  ;  and,  when 
executed,  make  full  report  of  your  doings  hereuiider  to  this  department. 
By  order  of  the  Secretary  of  War. 

(Signed)  C.  P.  WOLCOTT, 

Assistant  Secretary  of  War. 

It  was  set  forth  in  defendant's  petition  that  this  order  was  addressed  to  Wm. 
H.  Scott,  Washington,  D.  C.,  and  delivered  to  him,  and  that  he  proceeded  to 
its  execution,  and  called  at  the  Executive  office,  in  Columbus,  was  given  infor 
mation  in  regard  to  Kees,  his  paper,  and  persons,  to  call  on  at  Circleville,  &c., 
by  one  of  the  Governor's  staff;  and  that  Scott  did  proceed  to  Circleville,  and 
arrest  Kees  under  and  by  virtue  of  the  command  of  the  order  referred  to,  &c. 
And  the  petition  of  the  defendant,  David  Tod,  further  states,  that  about  the  6th 
of  June,  1862,  prior  to  the  issuing  of  the  order,  the  Circleville  Watchman  of 
that  date,  edited  and  published  by  Kees,  was  mailed  to  him  as  Governor,  con 
taining  marked  editorial  articles,  highly  libellous,  inflammatory,  and  treasonable 
in  their  character,  well  calculated  and  intended  to  prevent  enlistments,  weaken 
the  military  power  of  the  government,  and  produce  opposition  to  it  in  its 
efforts  to  crush  the  rebellion,  and  excite  further  rebellion  —  copies  of  which 
articles,  and  others  of  like  character  issued  prior  to  the  order,  are  shown  with 
the  petition. 

The  defendant  Tod  further  states  that  he  enclosed  the  Watchman  contain 
ing  the  marked  articles  by  mail  to  the  Secretary  of  War,  with  a  letter,  calling 
the  Secretary's  attention  to  the  marked  articles,  and  hoping  that  the  Secretary 
would  at  once  put  its  editor,  John  W.  Kees  with  his  secession  rebel  friends,  in 
Camp  Chase  prison,  where  it  would  be  his  (the  Governor's)  pleasure  to  see 
that  he  (Kees)  would  be  safely  kept. 

He  further  states  that  he  has  set  forth  his  only  connection  with  the  alleged 
arrest,  &c.,  and  that  he  did  nothing  more  ;  and  all  he  did  was  in  his  capacity 
as  Governor  of  Ohio,  and  in  performance  of  his  duty  to  the  national 
government. 

The  case  has  been  argued  and  heard  upon  the  defendant's  petitions  for  the 
removal  of  it  to  the  Circuit  Court  of  the  United  States. 

It  nowhere  appears  in  the  petition  of  the  plaintiff,  that  the  defendants,  in  the 
commission  of  the  trespasses  and  wrongs  against  the  person  of  the  plaintiff,  as 
alleged,  were  acting  under  any  authority,  or  color  of  authority,  from  any 
source  whatever.  And  so  far  as  appears  from  the  petition  of  the  plaintiff,  this 
Court  has  complete  jurisdiction  of  the  case. 


MILITARY    ARRESTS   IN  TIME   OF  WAR.  219 

But,  the  defendants  having  filed  their  petitions  for  the  removal  of  the  case 
under  the  fifth  section  of  the  act  of  Congress,  approved  March  3,  1863,  "relat 
ing  to  habeas  corpus  and  regulating  judicial  proceedings  in  certain  cases," 
•which,  if  applicable,  and  not  clearly  invalid,  so  far  as  applicable,  would 
require  that  the  prayer  of  the  defendants  should  be  granted,  no  objection  to 
the  manner  and  form  in  which  the  application  has  been  made  having  been 
raised  by  the  plaintiff. 

[Here  follows  the  sections  of  the  law,  as  quoted  above.] 

The  mere  reading  of  this  fifth  section,  of  itself,  shows  its  applicability  to  the 
case  before  us ;  indeed,  I  believe  that  is  not  denied  by  the  council  for  the 
plaintiff. 

But  it  is  claimed  that  the  law  is  invalid,  because  not  authorized  by  the 
Constitution  of  the  United  States,  and  because,  when  applied  to  the  case  in 
hand,  is  ex  post  facto,  the  right  of  action  having  accrued  prior  to  the  passage  of 
the  law.  Whatever  may  be  said  of  the  attempt  in  the  fourth  section  to  create 
a  defence,  or  provide  an  indemnity  against  trespasses  committed  prior  to  its 
passage,  cannot  be  urged  successfully  against  the  fifth  section,  which  only 
affects  the  remedy,  and  does  not,  in  any  manner,  touch  either  the  subject- 
matter  of  the  action  or  of  the  defence. 

These  sections  of  the  act  are  so  far  distinct  and  separable,  that  the  fifth  may 
be  sustained  independent  of  the  fourth. 

The  object  of  the  fourth  section  seems  to  be,  to  declare  what  is,  or  to  provide 
what  shall  be,  a  defence  in  certain  cases,  to  wit :  "  any  order  of  the  President, 
or  under  his  authority."  This  applies  only  to  cases  where  there  is  an  order, 
and  constitutes  such  order  a  defence  in  all  courts  where  it  shall  be  pleaded, 
whether  in  State  or  Federal  Courts.  The  object  of  the  fifth  section  is  to  pro 
vide  a  mode  for  the  transfer  of  certain  cases  from  the  State  to  the  Federal 
Courts,  to  wit :  "  all  suits  or  prosecutions  for  act  done  or  committed  by  virtue 
or  under  color  of  any  authority  derived  from  the  President,  or  any  act  of 
Congress."  This  section  applies  to  cases  not  included  in  the  fourth  section  ; 
it  applies  to  all  such  cases  as  stated,  whether  there  be  any  order  or  not. 

In  order  to  secure  the  benefit  of  it,  its  provisions  must  be  strictly  followed. 

Thus  it  will  be  seen  that  either  of  these  sections  may  be  invoked  without  the 
other,  and  that  the  fifth  is  applicable  to  cases  to  which  the  fourth  is  not ;  and 
while  the  object  of  the  fourth  is  to  provide  or  declare  rights,  the  object  of  the 
fifth  is  to  regulate  the  practice  in  those  and  certain  other  cases.  For  these 
reasons,  the  two  sections  are  so  far  separable  and  independent  of  each  other, 
that  the  fifth  may  be  held  constitutional  and  the  fourth  unconstitutional.  And, 
as  it  is  not  claimed  that  the  fifth  section  is  of  itself  unconstitutional,  but  only 
becomes  so  by  reason  of  its  inseparable  connection  with  the  fourth,  I  conclude 
that,  as  there  is  no  such  connection  between  them,  the  argument  fails,  and  the 
Court  may  be  justified  in  holding  the  fifth  valid,  without  determining  the  valid 
ity  of  the  fourth. 

It  will  not  be  denied  but  that  the  Legislature  of  Ohio  might,  even  after  the 
right  of  an  action  of  trespass  in  favor  of  a  party  had  accrued  against  a  Con 
stable  or  Sheriff,  pass  a  law  providing  that  where  such  Constable  or  Sheriff  had 
been  sued  in  trespass,  before  a  Justice  of  the  Peace,  as  an  individual,  that  if 


220  MILITARY   ARRESTS   IN   TIME   OF  WAR. 

such  officer  desired  to  justify  under  a  writ,  and  should  make  that  known  to  the 
J  ustice,  then  it  should  be  his  duty  to  certify  the  case  to  a  Court  of  Record 
having  cognizance  of  the  official  acts  of  such  defendant.  Neither  the  subject- 
matter  of  the  right  of  action  nor  the  defence  would  be  in  the  least  interfered 
with  ;  the  mode  of  proceeding  and  the  remedy  are  changed  ;  that  is  all. 

A  more  appropriate  tribunal  is  provided ;  and  so  here  this  fifth  section  pro 
vides  another  tribunal  —  one  having  cognizance  of  United  States  officers,  their 
official  acts,  and  of  the  Constitution  and  laws  of  the  United  States,  under  which 
they  act :  no  new  defence  is  created,  nor  the  right  of  action  any  way  impaired. 
This  section,  therefore,  is  not  invalid  on  the  ground  of  its  being  retroactive. 

It  is,  however,  claimed  that  the  facts  set  forth  in  the  petition  of  defendant 
can  constitute  no  defence,  as  the  order  under  which  the  arrest  was  made  was 
issued  without  authority  under  the  Constitution  of  the  United  States,  or  the 
laws  thereof,  and  that  the  fourth  section  of  the  act  cannot  support  the  defence, 
although  in  terms  it  may  include  it  —  for  two  reasons  :  first,  because  that  sec 
tion  attempts  to  create  a  defence  to  a  valid  cause  of  action  after  it  arose,  and  is, 
therefore,  retroactive  ;  and,  second,  because  Congress  can  confer  no  power  on 
the  President  to  issue,  or  cause  to  be  issued,  such  orders,  either  in  time  of  war 
or  peace,  by  virtue  of  any  grant  in  the  Constitution,  by  inference  or  otherwise ; 
and  that  the  attempt,  therefore,  to  make  such  defence,  is  a  nullity,  and  being  so, 
the  defence  and  the  application  to  remove  must  fall  together. 

As  to  the  first  reason,  suffice  it  to  say,  "sufficient  unto  the  day  is  the  evil 
thereof."  When  the  defence  provided  by  the  fourth  section  is  set  up  upon  the  trial 
of  the  cause  upon  its  merits,  either  in  this  court  or  in  the  court  to  which  it 
may  be  removed,  it  will  be  time  enough  to  decide  the  question.  To  do  so  now 
would  be  to  prejudge  the  case  without  a  full  hearing  on  the  merits,  and,  if 
decided  for  the  defendants,  there  would  be  no  need  for  a  removal,  and  if  for 
the  plaintiff,  the  only  matter  left  would  be  an  inquiry  into  damages ;  it  would 
be  equivalent  to  the  decision  of  a  demurrer  to  defendant's  answer,  on  this  pre 
liminary  application,  and  would  be  taking  from  the  tribunal  whose  jurisdiction 
is  sought,  one  of  the  questions  upon  which  it  should  pass. 

Again,  granting  that  this  fourth  section  is,  so  far  as  the  case  at  bar  is 
concerned,  ex  post  facto  in  terms,  and  should  be  so  held  when  the  case  is  tried 
upon  its  merits,  we  are  brought  to  consider  the  second  reason  given  for  its 
invalidity.  Suppose  the  power  to  issue  the  order  in  question  existed  in  the 
President,  independent  of  section  fourth,  would  its  enactment  annul  that  power, 
or  only  declare  it?  The  act  in  question  does  not  attempt  to  confer  the  po\ver 
on  the  President  to  issue,  or  cause  to  be  issued,  such  order ;  it  merely  declares 
that  such  orders,  when  issued  shall  be  a  good  defence,  proceeding  upon  the 
hypothesis,  as  we  suppose,  that  he  always  possessed  the  power ;  so  that  in  this 
view  the  fourth  section  partakes  more  of  the  nature  of  an  act  declaratory,  than 
of  the  enactment  of  a  new  law  conferring  power.  Enough,  perhaps,  has  already 
been  said  to  justify  this  court  in  granting  the  prayer  of  the  defendants'  petitions, 
and  leave  the  question  as  to  the  authority  of  the  War  Department  to  issue  the 
order  set  forth,  for  decision  in  the  Circuit  Court  as  the  appropriate  tribunal. 
But,  inasmuch  as  it  is  claimed  by  the  plaintiff,  that  no  such  authority,  or  color 
of  authority  exists,  and  that  therefore  there  is  no  foundation  for  the  jurisdictioij 


MILITARY  ARRESTS   IN  TIME   OF   WAR.  221 

sought  by  the  defendants,  I  will  proceed  to  offer  reasons  and  authority,  to  show 
that  it  is  at  least  a  question  of  serious  doubt,  and, therefore,  proper  for  the  Unit 
ed  States  Court,  as  the  doubt  should  be  resolved  in  favor  of  the  law. 

Then,  let  us  inquire  into  the  power  of  the  President,  under  the  constitution, 
as  commander-in  chief  of  the  army  and  navy,  in  time  of  a  fearful  rebellion  like 
the  present,  to  issue,  or  cause  to  be  issued,  such  orders  of  arrest,  &c.  We  all 
know  the  history  of  the  sad  times  that  have  fallen  upon  us.  The  fact  of  a  most 
violent,  bloody,  and  terrific  Avar,  threatening  our  entire  destruction  as  a  nation  — 
the  imminent  and  immediate  danger  which  threatens  us  in  all  we  have  and  are 
in  life  —  and  of  this  contemporaneous  history,  of  course  the  court  should  and 
will  take  notice. 

In  view  of  this,  then,  let  us  turn  to  the  petition  of  the  defendant  David  Tod, 
and  ascertain,  if  we  can,  something  of  the  cause  of  the  arrest.  It  appears  in  the 
petition  that  the  defendant,  prior  to  the  issuing  of  the  order,  wrote  a  letter  to 
the  War  Department,  enclosing  certain  marked  editorials  of  the  Watchman,  of 
which  Kees  was  editor  and  publisher,  calling  the  attention  of  the  Secretary  of 
War  thereto,  and  expressing  a  hope  that  the  Secretary  would  at  once  put  Kees, 
with  his  secession  rebel  friends,  in  Camp  Chase  Prison,  &c.  Copies  of  the 
editorials  are  referred  to  in,  and  filed  with,  the  petition.  In  the  article  of  June 
6,  1862,  this  passage  occurs:  "We  advised  all  Democrats  to  stay  at  home,  and 
Jet  the  authors  and  provokers  of  this  war,  the  Abolition  Republicans,  fight  out 
their  own  war  themselves ;  this  is  what  ought  to  have  been  done.  If  such  had  been 
the  policy  of  the  Democracy,  we  would  not  to-day  have  a  devastated  country, 
drenched  in  fraternal  blood."  Again,  in  an  editorial  article  of  the  Watchman, 
June  13,  1862,  is  this  question,  (after  speaking  of  Ben.  Butler  m  exceedingly 
harsh  terms,)  "  Why  don't  the  men  of  New  Orleans  shoot  the  infamous  wretch 
like  they  would  a  reptile  or  a  dog."  These,  with  many  kindred  extracts,  are 
filed  with  the  petition,  and  are  characterized  in  the  petition  of  Governor  Tod 
as  highly  libellous,  inflammatory  and  treasonable  in  character,  well  calculated 
and  intended  to  prevent  enlistments,  weaken  the  military  power  of  the  govern 
ment,  and  produce  opposition  to  it  in  its  efforts  to  crush  the  rebellion,  and 
excite  further  rebellion.  This  is  all  the  information  we  have  as  to  the  cause  of 
the  arrest  of  Kees ;  whether  the  War  Department  had  other  and  further  foun 
dation  we  know  not — the  presumption  is,  so  far  as  this  motion  is  concerned, 
that  the  information  it  had,  whether  under  oath  or  otherwise,  was  deemed 
sufficient  by  it,  for  his  arrest ;  sufficient  to  establish  the  fact,  that  the  danger 
from  Kees  to  the  public  service,  while  left  at  liberty,  was  immediate  and  impend 
ing,  and  that  the  urgent  necessity  for  the  public  service  demanded  his  arrest. 
Whether  this  was  so  or  not,  I  do  not  undertake  to  say,  nor  is  it  necessary  to 
decide,  in  disposing  of  this  motion. 

Article  3d,  Section  2d,  of  the  Federal  Constitution  provides  that  "The  judi 
cial  power  (of  the  United  States)  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  Constitution  and  the  laws  of  the  United  States,"  &c. 

The  President  is  commander  in-chief  of  the  army  and  navy,  by  express  pro 
vision  of  the  Constitution.  Now,  if  the  power  to  issue  this  order  of  arrest  is 
incident  to  his  office  as  Commander-in-chief,  then,  by  necessary  implication, 
the  power  is  derived  from  the  Constitution,  without  the  aid  of  the  fourth  section 


222  MILITARY  ARRESTS  IN  TIME   OF  WAR. 

referred  to,  and,  if  Kees  was  arrested  by  virtue  of  su^h  order,  then  the  case 
arose  under  the  constitution,  and  the  United  States  courts  have  jurisdiction, 
and,  as  we  have  seen,  it  may  be  transferred  in  the  manner  pointed  out  by  the 
fifth  section  of  that  act,  independent  of  the  fourth. 

And,  if  such  power  belongs  to  the  President,  as  an  incident  to  his  office  of 
Commander-in-chief,  no  question  but  he  may  transfer  it  to  his  subordinates,  for 
all  the  war  power  vested  in  him  may  be,  and  is,  distributed  to  the  vast  army  of 
war  officers  who  act  under  him  as  his  agents.  Upon  this  question  there  is, 
and  has  been,  a  great  conflict  of  opinion,  both  legal  and  political.  The  order 
by  which  Mr.  Vallandigham  was  arrested,  was  from  the  same  source  of  power. 
Judge  Leavitt  passed  upon  the  question  and  upheld  the  power,  and  Mr.  Val 
landigham  was  tried  and  sentenced  under  it. 

It  is  claimed  that  the  power  in  question  is  exercised  under  what  is  called 
martial  law,  or  the  right  of  war,  and  not  under  military  law,  which,  it  is  said, 
is  defined  by  the  articles  of  war  and  the  decisions  under  them,  and  is  for  the 
government  of  the  army,  &c.  And  it  is  claimed  that  this  martial  authority 
belongs,  as  a  necessary  incident,  to  the  commander-in-chief,  and  that  when 
that  office  is  conferred,  the  necessary  incident,  in  time  of  war,  is  conferred  with 
it,  and  is  as  much  a  part  of  the  office  as  any  other. 

Now,  if  this  be  so,  it  follows,  of  course,  that  when  the  office  of  commander- 
in-chief  is  conferred  by  the  Constitution  upon  the  President,  this  martial  power 
is  also  conferred  and  secured,  as  clearly  as  the  right  of  trial  by  jury,  the  liberty 
of  the  person,  the  freedom  of  speech  and  of  the  press,  is  secured  to  the  citizen 
in  time  of  peace. 

The  question  here  is,  not  whether  the  power  was  exercised  under  proper  re 
straint,  but  whether  it  exists  all,  and  it  is  not  necessary  to  its  exercise  that 
martial  law  shall  first  have  been  declared.  Cases  are  numerous,  both  in  Amer 
ica  and  in  Europe,  where  the  authority,  of  the  nature  of  the  power  in  question 
has  been  exercised  in  time  of  war,  by  the  commander-in-chief  and  his  sub 
ordinates,  in  the  absence  of  the  declaration  of  martial  law,  and  afterwards  sus 
tained  by  the  civil  courts.  In  the  case  of  Mitchell  vs.  Harmony,  reported  in  13 
Howard,  115,  which  was  an  action  brought  by  the  plaintiff"  against  the  defend 
ant,  to  recover  damages  for  the  seizure  of  property,  as  a  commander  in  the 
Mexican  war,  under  the  pretext  of  military  necessity,  Chief  Justice  Taiiey,  in 
delivering  the  opinion  of  the  court  in  that  case,  said,  "It  is  impossible  to 
define  the  particular  circumstances  of  danger  or  necessity  in  which  the  power 
may  be  lawfully  exercised.  Every  case  must  depend  on  its  own  circumstan 
ces.  It  is  the  emergency  that  gives  the  right.  In  deciding  upon  this  necessity, 
however,  the  state  of  facts,  as  they  appeared  to  the  officer  at  the  time  he  acted, 
must  govern  the  decision,  for  he  must  necessarily  act  upon  the  information  of 
others  as  well  as  his  own  observation.  And  if,  with  such  information  as  he 
had  a  right  to  rely  on,  there  is  reasonable  ground  for  believing  that  the  peril  is 
immediate  and  menacing,  or  the  necessity  urgent,  he  is  justified  in  acting  upon 
it,  and  the  discovery  afterwards,  that  it  was  false  and  erroneous,  will  not  make 
him  a  trespasser."  Now,  it  is  urged  that  the  power  exercised  by  the  defendants 
in  the  case  named,  was  a  partial  exercise  of  martial  law,  and  did  not  depend 
upon  time  or  place,  but  upon  the  emergency,  and  that  it  was  the  emergeiicy  that 
gave  the  right  to  exercise  it. 


/ 


MILITARY   ARRESTS  IN  TIME   OF  WAR.  223 

Chancellor  Kent  lays  dow^Tthe  doctrine  that  martial  law  is  quite  a  distinct 
thing  from  military  lawj>/that  it  exists  only  in  time  of  war,  and  originates  only 
in  military  necessij^'''lt  derives  no  authority  from  the  civil  law,  no  assistance 
from  the  ciyif  tribunals,  for  it  overrules,  suspends,  and  replaces  them.  See 
Cipiffffg^s  Opinions  of  Attorney  Generals  of  the  United  States,  vol.  8,  page  365, 
&c*.,  and  the  authorities  there  cited.  See  also  the  case  of  Luther  vs.  Borden, 
et.  al.,  1  Howard,  page  1. 

It  is  also  claimed  that  Washington's  army  exercised  the  power  in  question, 
during  the  whiskey  insurrection  of  1794  and  1795,  and  that  General  Wilkinson, 
under  the  authority  of  Jefferson,  exercised  it  during  the  Burr  conspiracy,  in 
1806;  and  that  General  Jackson  called  it  into  requisition  at  New  Orleans,  in 
1814. 

In  the  case  of  the  application  of  Nicholas  Kemp,  for  a  writ  of  habeas  corpus, 
the  Supreme  Court  of  Wisconsin  recently  decided  against  the  power  it  gave 
the  President  to  suspend  the  writ,  but  recognized  the  war  right,  or  martial  law, 
under  certain  limitations. 

See  also  the  case  of  Brown  vs.  the  United  States,  book  8,  Cranch,  page  153, 
where  Chief  Justice  Marshall,  in  delivering  the  opinion  of  the  court,  holds  that 
"  as  a  consequence  of  the  power  of  declaring  war  and  making  treaties,  &c.,  when 
the  legislative  authority  has  declared  war,  the  Executive,  to  whom  its  execution 
is  confided,  is  bound  to  carry  it  into  effect ;  he  has  a  discretion  vested  in  him  as 
to  the  manner  and  extent :  but  he  cannot,  morally,  transcend  the  rules  of  war 
fare  established  among  civilized  nations." 

See  Vattel,  pages  5  and  6,  where  the  rule  is  laid  down,  that  "  a  nation  has  a 
right  to  every  thing  that  can  help  to  ward  off  imminent  dangers,  and  keep  at  a 
distance  whatever  is  capable  of  causing  its  ruin,  and  that  from  the  very  same 
reasons  that  establish  its  rights  to  the  things  necessary  for  its  preservation. " 
He  also  lays  down  the  rule,  that  the  same  rules  of  war  apply  to  civil  as  to 
foreign  wars. 

It  is  not  controverted  but  that  the  commander  of  an  army  may  exercise,  in 
proper  cases,  the  power  in  question,  over  both  property  and  person,  within  the 
territory  and  its  vicinity  under  the  control  of  the  army,  although  martial  law 
has  not  been  declared,  nor  the  civil  law  entirely  suspended.  What  is  it,  then, 
but  a  partial  exercise  of  martial  law  ?  And  what  gives  the  right  but  a  military 
necessity,  or  emergency  ?  And  from  what  source  does  the  power  come,  if  not 
from  the  President,  as  commander-in-chief  ?  Now,  what  good  reason  can  there 
be  for  confining  the  power  to  and  within  the  lines  of  the  army,  provided  a  like 
urgent  necessity  and  emergency  arises  or  exists  at  any  other  point  outside  of 
the  lines  of  the  army,  and  within  the  territory  of  the  government  or  nation  ? 
What  is  the  theatre  of  the  present  war  in  this  country  ?  Is  it  only  that  portion 
of  the  country  included  within  the  lines  of  the  armies,  which  extend  from  the 
Chesapeake  Bay  to  the  spurs  of  the  Rocky  Mountains  ?  or  is  it  not  rather  the 
whole  nation,  the  loyal  States  upon  the  one  side,  and  the  disloyal  upon  the 
other  ?  and  are  not  all  within  the  vicinity  of  the  lines  of  the  armies,  as  far  as  that 
vicinity  is  to  be  considered  as  affecting  the  exercise  of  the  authority  in  dispute  ? 

The  right  to  impress  private  property,  either  for  the  use  of  the  government, 
or  to  prevent  it  from  falling  into  the  hands  of  the  enemy,  arising  from  urgent 


224  MILITARY  ARRESTS   IN  TIME   OF  AVAR. 


necessity,  or  from  immediate  impending  danger,  ;n  v  ^-vhere  within  the  territory 
of  the  country,  although  outside  the  lines  of  the  ai  :{iy,  ha-3  never,  that  I  am 
aware  of,  been  disputed ;  but  whether  the  emergent;, 

ment  was  properly  made,  may  be  disputed,  and  is  '.  >ere 

are  numerous  instances  where  this  } 
lines  of  the  army,  and  no  one  has  doubted 
graphs,  with  their  machinery  and  cm; 
into  the  service  of  the  government,  and  controlled  per  force,  and  the  emer- 
gency  relied  upon  to  justify  the  act,  the  whole  country  acquiescing  therein.  In 
such  cases  the  commander  must  be  the  judge  of  the  urgent  necessity,  and  if  he 
decides  that  the  necessity  exists,  and  issues  the  order  for  the  impressment,  his 
subordinates  are  bound  to  obey.  And  it  would  seem  from  a  well-settled  prin 
ciple  of  the  common  law  that  such  subordinates  would  be  justified,  although 
their  commander  may  have  had  but  slight  foundation  for  the  exercise  of  the 
authority,  and  this  upon  the  principle  that,  if  the  power  existed  at  all,  the  com 
mander,  and  not  the  soldier,  is  to  judge  of  the  limitations  under  which  it  is  to 
be  exercised.  If  the  order  is  wanton,  the  party  injured  has  his  remedy  against 
the  commander.  If  it  is  said  that  the  recognition  of  such  a  doctrine  is  danger 
ous  to  the  liberties  and  rights  of  the  people,  and  tends  to  subvert  free  govern 
ment  and  establish  despotism,  the  answer  is,  that  the  abuse  of  any  power  tends 
to  the  same  end,  and  that  it  is  the  abuse,  and  not  the  legitimate  exercise  of  it, 
which  makes  it  dangerous.  The  limitations  are  well  defined,  and  if  he  who 
undertakes  to  exercise  it  oversteps  the  bounds,  he  may  be  called  to  an  account ; 
and  if  the  President  corruptly  and  wantonly  exercises  it,  he  may  -be  impeached, 
and  at  the  end  of  his  term  the  people  will  correct  the  error.  But  it  is  claimed, 
that  although  the  authority  may  be  exercised  over  property  as  stated,  yet  it  can 
not  be  so  exercised  over  persons,  although  the  same  danger  and  urgent 
necessity  may  exist ;  for  the  reason  that,  in  the  case  of  the  impressment  of  prop 
erty,  a  compensation  is  made  by  the  government  to  the  owner,  while  in  the 
case  of  the  arrest  of  the  person  no  such  compensation  can  be  made.  Now, 
does  the  fact  of  compensation  give  the  right  to  impress  ?  It  is  not  so  laid  down 
by  any  authority  which  has  come  under  my  notice.  Compensation  is  not  the 
test  of  the  right,  but  one  of  the  results  of  the  act.  The  right  arises  from  a  far 
higher  source,  to  wit,  the  right  of  a  nation  to  do  any  act  which  will  ward  off 
a  dangerous  blow  aimed  at  its  existence,  and  which  tends  to  preserve  its  life  in 
time  of  war. 

This  test,  it  is  claimed  with  great  force,  applies  as  well  to  the  arrest  of  a  per 
son  as  to  the  impressment  of  his  property,  under  proper  restraints  and  in  a 
proper  case. 

But,  again,  it  is  claimed  that  the  recognition  of  this  doctrine  subverts  the 
guarantees  of  the  Constitution,  of  the  right  of  trial  by  jury,  and  against  unrea 
sonable  search,  seizure  &c.  While,  on  the  other  hand,  it  is  argued  that  the 
power  is  incident  to  the  office  of  commander-in-chief  of  the  armies  in  time  of 
war,  and  necessarily  implied.  And,  I  ask,  is  this  not  true  when  the  case  arises 
within  the  limits  of  the  army,  where  its  exercise  is  uncontroverted  ?  And  if 
the  guarantees  of  the  Constitution  are  inapplicable  in  the  one  case,  are  they  not 
equally  so  in  the  other  ?  and  if  the  immediate  danger  and  urgent  necessity  is 


MILITARY  ARRESTS   IN   TIME   OF  WAR.  225 

the  foundation  of  the  right,  and  that  may  be  exercised  outside  as  well  as  inside 
the  lines,  where  is  the  line  of  distinction  to  be  drawn  ? 

Again,  was  the  order  of  arrest  in  question  issued  upon  the  charge  of  the 
commission  of  any  crime,  or  only  because  there  was  supposed  to  be  imminent 
and  impending  danger  that  an  irreparable  injury  would  be  committed,  and  in 
this  view  may  not  the  government  act  upon  the  same  principle  that  civil 
courts  act  in  cases  of  peace  warrants  ?  Where  a  citizen  has  been  arrested  and 
brought  before  the  court  on  a  peace  warrant,  and  tried,  without  a  jury,  and 
the  court  find  that  the  complainant  has  just  cause  to  fear,  and  does  fear,  that 
the  accused  will  kill  him,  the  court  will  require  bail  to  keep  the  peace,  and,  in 
default  of  bail,  will  imprison  the  defendant,  not  for  any  crime  that  he  has  com 
mitted,  but  for  fear  that  he  will  commit  an  irreparable  injury.  Now,  shall  the 
government  be  denied  a  remedy  in  a  like  case,  where  an  irreparable  injury  to 
it  in  time  of  war  is  threatened  and  impending,  and  where  the  commander-in- 
chief,  or  his  subordinates,  are  convinced  that  a  citizen,  inimical  to  the  govern 
ment,  is  about  to  commit  some  act  against  the  government  and  in  favor  of  the 
enemy,  which,  if  committed,  will  be  irreparable,  and  that  there  is  imminent 
and  immediate  danger  that  the  act  will  be  committed  ?  May  not  the  authorities, 
in  order  to  prevent  it,  take  steps  to  avert  it,  and,  if  necessity  requires,  to  re 
strain  such  citizen  per  force  —  even  by  imprisonment  —  until  the  danger  is  past, 
although  no  crime  has  actually  been  committed,  and  this  be  justified  under  the 
usages  of  war,  or  a  partial  exercise  of  martial  law,  it  matters  not  by  what  name 
it  is  called  ? 

I  do  not  intend  to  decide,  nor  do  I  wish  to  be  understood  as  deciding, 
whether  the  Secretary  of  War  was  justifiable  in  issuing  the  order  in  question, 
or  whether  the  defendants  can  justify  under  it,  for  that,  I  consider,  should  be 
left  for  the  trial  on  the  merits  of  the  case. 

I  have  made  these  suggestions,  and  cited  authorities  to  show,  that  it  would 
look  like  an  unwarranted  usurpation  in  this  court,  more  dangerous,  perhaps, 
than  the  military  power  objected  to,  to  pass  upon  and  nullify  the  fifth  section  of 
the  act  of  Congress,  under  which  the  defendants'  petitions  are  filed,  in  this  sum 
mary  and  preliminary  proceeding,  and  thus  wrench  from  the  defendants,  who 
stand  in  a  United  States  relation  to  the  case,  the  right  to  have  it  heard  and 
determined  by  a  United  States  court. 

The  plaintiff  has  all  the  guarantees  for  a  fair  and  impartial  hearing  and  trial 
in  that  court  that  he  has  in  the  State  courts  ;  and,  besides,  one  principal  reason 
why  such  cases  should  be  tried  in  the  Federal  courts,  is,  to  secure  uniformity  in 
the  rules  governing  such  cases.  If  it  were  left  to  the  State  courts  —  as  these 
cases  concerning  United  States  laws,  Constitution,  and  officers  arise  in  every 
State  —  there  might  be  as  great  a  variety  of  contradictory  decisions  as  there  are 
State  courts.  The  consequence  would  be,  that  no  man  would  or  could  know 
the  law  governing  United  States  officers,  and  the  affairs  of  the  nation  would 
run  into  utter  confusion,  and  the  officer  would  be  constantly  liable  to  be  ha 
rassed  in  each  State,  and  subject  to  a  different  law  or  rule  every  time  he  crossed 
a  State  line.  The  prayer  of  the  defendants'  petitions  is  granted. 

29 


RETURN 


OF 


REBELLIOUS   STATES 


TO    THE    UNION. 


THE 


RETUKN  OF  REBELLIOUS  STATES 

TO    THE    UNION.* 


TWOFOLD  WAR. 

HOWEVER  brilliant  the  success  of  our  military  opera 
tions  has  been,  the  country  is  encompassed  by  dangers. 
Two  wars  are  still  waged  between  the  citizens  of  the 
United  States  —  a  war  of  Arms  and  a  war  of  Ideas. 
Achievements  in  the  field  cannot  much  outstrip  our 
moral  victories.  While  we  fix  our  attention  upon  the 
checkered  fortunes  of  our  brave  soldiers,  and  trace 
their  marches  over  hills  and  valleys  made  memorable 
through  all  time  by  their  disasters  or  their  triumphs ; 
while,  agitated  by  hope  and  fear,  by  exultation  and 
disappointment,  we  see  our  brothers  and  sons  mourn- 

*  During  the  spring  and  summer  of  1863,  efforts  were  made  by  certain  citizens  of  Flor 
ida,  Louisiana,  Arkansas,  and  Eastern  Virginia  to  obtain  the  assent  of  the  President  to 
the  formation  of  local  State  governments,  and  to  the  recognition  thereof  by  the  Executive 
and  Legislative  Departments.  The  views  on  this  subject  contained  in  the  following  pages, 
having  been  communicated  verbally  to  the  President,  were  subsequently  embodied  in  a 
letter  to  the  Union  League  of  Philadelphia,  published  July  28,  1803. 

(229) 


230  KECONSTRUCTION    OF   THE   UNION. 

ing  'the  loss  of  thousands  of  their  companions  in  arms, 
yet  marching  joyfully  to  the  post  of  danger  and  of 
honor ;  while  we  follow  with  intense  solicitude  the 
movements  of  our  vast  armies  advancing  with  unfal 
tering  courage  against  a  powerful  and  desperate  foe,  — 
let  us  not  forget  that  more  majestic  contest  waged  by 
men  not  less  heroic,  for  victories  not  less  renowned 
than  those  which  have  been  won  on  battle-fields.  The 
deadliest  struggle  in  this  rebellion  is  that  of  barbarism 
against  civilization,  slavery  against  freedom,  aristocracy 
against  republicanism,  and  treason  against  loyalty. 
The  true  patriot  will  watch  with  profound  interest 
the  fortunes  of  this  intellectual  and  moral  conflict, 
because  the  issue  involves  the  country's  safety,  pros 
perity,  and  honor.  If  victory  shall  crown  the  efforts 
of  those  brave  men  who  believe  and  trust  in  God, 
then  shall  all  this  bloody  sacrifice  be  consecrated, 
and  years  of  suffering  shall  exalt  us  among  the 
nations ;  if  they  fail,  no  triumph  of  brute  force 
can  compensate  the  world  for  our  unfathomable 
degradation.  Let  us,  then,  endeavor  to  appreciate 
the  difficulties  of  our  present  position. 


BREAKERS    AHEAD. 


Of  several  subjects,  to  which,  were  it  now  in  my 
power,  I  would  ask  your  earnest  attention,  I  can  speak 
of  one  only.  As  the  success  of  the  Union  cause  shall 
become  more  certain  and  apparent  to  our  enemies  in 
the  rebel  States,  they  will  lay  down  arms  and  cease 
fighting.  Their  intense  and  relentless  hatred  of  the 
Government,  of  Northern  men  who  are  not  traitors,  and 


RECONSTRUCTION    OF   THE   UNION.  231 

of  Southern  men  who  are  loyal,  will  still  remain  fes 
tering  in  every  fibre  of  their  hearts,  and  will  be 
made,  if  possible,  more  bitter  by  the  humiliation  of 
conquest  and  subjection.  The  foot  of  the  conqueror 
planted  upon  their  proud  necks  will  not  sweeten  their 
tempers.  Their  defiant  and  treacherous  nature  will 
seek  to  revenge  itself  in  murders,  assassinations,  and 
all  underhand  methods  of  venting  a  spite  which  they 
dare  not  manifest  by  open  war,  and  in  driving  out  from 
their  borders  all  loyal  men.  To  believe  that  sincere 
attachment  to  the  Union  will  survive  in  the  hearts  of 
a  hostile  people  who  have  strained  every  nerve  and 
made  every  sacrifice  to  destroy  it,  would  require  the 
most  pitiable  credulity. 

The  slaveholding  inhabitants  of  the  conquered  dis 
tricts  will  begin  by  asserting  their  claim  to  exercise  the 
powers  of  government  in  accordance  with  their  con 
struction  of  State  rights ;  they  will  try  to  get  control 
of  the  lands,  personal  property,  slaves,  free  blacks,  and 
poor  whites,  and,  through  the  instrumentality  of  local 
laws,  made  to  answer  their  own  purposes,  to  acquire 
the  means  of  opposing  and  preventing  the  execution 
of  the  constitution  and  laws  of  the  United  States, 
within  the  region  of  country  occupied  by  them.  Thus, 
for  instance,  when  the  people  of  South  Carolina  shall 
have  ceased  fighting,  they  will  say  to  the  President, 
"  We  have  now  laid  down  our  arms ;  we  submit  to  the 
authority  of  the  United  States  government.  You  may 
restore  your  custom-houses,  your  courts  of  justice,  and, 
if  we  hold  any  public  property,  we  give  it  up  :  wre  now 
have  chosen  senators  and  representatives;  we  de 
mand  their  admission  to  Congress,  the  full  recogni- 


232  RECONSTRUCTION    OF   THE   UNION. 

tion  of  otir  State  rights,  and  the  restoration  of  our 
former  privileges  and  immunities  as  citizens  of  the 
United  States."  Claims  like  these  will  be  made  by 
men  who  are  traitors  at  heart ;  men  who  hate  and 
despise  the  Union ;  men  who  never  had  a  patriotic 
sentiment ;  men  who,  if  they  could,  would  hang  every 
friend  of  the  government.  But  for  the  sake  of  get 
ting  into  their  own  hands,  by  our  concession,  power 
which  they  could  not  obtain  by  fighting,  and  to  avoid 
the  penalty  of  their  national  crimes,  they  will  at 
tempt  to  destroy  the  Union  under  the  guise  of 
claiming  State  rights. 


CONSEQUENCES    OF  BEING  OUTWITTED  BY  REBELS. 

What  will  be  the  consequence  of  yielding  to  these 
demands?  Our  public  enemy  will  gain  the  right 
of  managing  their  affairs  according  to  their  will 
and  pleasure,  and  not  according  to  the  will  and 
pleasure  of  the  people  of  the  United  States.  They 
will  be  enabled,  by  the  intervention  of  their  State 
laws  and  State  courts,  to  put  and  maintain  them 
selves  in  effectual  and  perpetual  opposition  to  the  laws 
and  constitution  of  the  United  States,  as  they  have  done 
for  more  than  thirty-five  years.  They  will  have  the 
power  to  pass  such  local  laws  as  will  practically  exclude 
from  the  slave  States  all  northern  men,  all  soldiers,  all 
free  blacks,  and  all  persons  and  things  wThich  shall  be 
inconsistent  with  the  theory  of  making  slavery  the 
corner-stone  of  their  local  government ;  and  they  may 
make  slavery  perpetual,  in  violation  of  the  laws  of  the 
United  States  and  the  proclamations  of  the  President. 


RECONSTRUCTION   OP   THE   UNION.  233 

They  may  continue  the  enforcement  of  that  class  of 
statutes  against  free  speech  and  freedom  of  the  press, 
which  will  forever  exclude  popular  education,  and  all 
other  means  of  moral,  social,  and  political  advancement. 
They  may  send  back  to  Congress  the  same  traitors 
and  conspirators  who  have  once  betrayed  the  country 
into  civil  war,  and  who  will  thwart  and  embarrass  all 
measures  tending  to  restore  the  Union  by  harmonizing 
the  interests  and  the  institutions  of  the  people,  and  so, 
under  the  guise  of  submission,  amnesty,  and  restora 
tion,  they  may  gain  by  fraud  and  treason  that  which 
they  could  not  achieve  by  feats  of  arms.  The  insane 
theory  of  State  rights  will  be  nourished  and  strength 
ened  if  we  treat  a  conquered  people  as  our  equals, 
and  its  baleful  influence  cannot  be  avoided !  To 
satisfy  traitors,  the  solemn  pledge  of  freedom  offered 
to  colored  citizens  by  Congress  and  by  the  Proclama 
tion  must  be  broken,  and  the  country  and  the  govern 
ment  must  be  covered  with  such  unspeakable  infamy, 
that  even  foreign  nations  might  then  justly  hold  us 
guilty  of  treachery  to  the  cause  of  civilization  and  of 
humanity. 

Suppose  that  the  rebellion  had  been  already  quelled, 
would  you  give  to  your  enemy  the  power  of  making 
your  laws  ?  Eastern  Virginia,  Florida,  and  Louisiana 
are  now  (1863)  knocking  at  the  door  of  Congress  for 
admission  into  the  Union.  Citizens  from  the  South 
have  come  to  Washington,  chosen  to  office  by  a  hand 
ful  of  associates,  elevated  by  revolution  to  unaccus 
tomed  dignity,  representing  themselves  as  loyal  Union 
men,  and  earnest  to  have  State  rights  bestowed  on 
their  constituents.  If  they  should  be  clothed  with  the 
30 


234  RECONSTRUCTION    OF   THE    UNION. 

power  to  constitute  States  in  the  Union,  into  whose 
hands  will  their  State  governments  be  sure  to  fall  ? 
Beware  of  committing  yourselves  to  the  fatal  doc 
trine  of  recognizing  the  existence  in  the  Union,  of 
States  which  have  been  declared  by  the  President's 
Proclamation  to  be  in  rebellion,  else,  by  this  new 
device  of  the  enemy,  this  new  version  of  the  poisonous 
State  rights  doctrine,  the  secessionists  will  be  able  to 
get  back  by  fraud  what  they  failed  to  get  by  fighting. 
Do  not  permit  them,  without  proper  safeguards,  to 
resume  in  your  counsels  in  the  Senate  and  in  the 
House  the  power  which  their  treason  has  stripped 
from  them.  Do  not  allow  old  States,  with  their  con 
stitutions  still  unaltered,  to  resume  State  powers.  Be 
true  to  the  Union  men  of  the  South.  Trust  not 
designing  politicians  in  the  border  States.  The  rebel 
districts  contain  ten  times  as  many  traitors  as  loyal 
men.  The  traitors  will  have  a  vast  majority  of  the 
votes.  Clothed  with  State  rights  under  our  constitu 
tion,  they  will  crush  every  Union  man  by  the  irre 
sistible  power  of  their  legislation.  If  you  would  be 
true  to  the  patriots  of  the  South,  you  must  not  bind 
them  hand  and  foot,  nor  deliver  them  over  to  their 
bitterest  enemies. 

STATE   RIGHTS   IN  CIVIL  WAR. 

Beware  of  entangling  yourselves  with  the  tech 
nical  doctrines  of  forfeiture  of  State  rights,  as  such 
doctrines  admit,  by  necessary  implication,  the  va 
lidity  of  a  code  of  laws,  and  of  corresponding  civil 
and  political  rights,  which  you  deny.  To  preserve 
the  Union,  requires  only  the  strict  enforcement 


RECONSTRUCTION    OF    THE    UNION.  235 

against   public    enemies  of  our  belligerent   rights  of 
civil  war. 

ATTITUDE  OF  THE  GOVERNMENT  IN  THE  BEGINNING  OF  THE  WAR 
TOWARDS  THE  REBELS,  AND  TOWARDS  LOYAL  MEN  IN  REBEL  DIS 
TRICTS. 

When  the  insurrection  commenced  by  illegal  acts  of 
secession,  and  by  certain  exhibitions  of  force  against 
the  government,  in  distant  parts  of  the  country,  it  was 
supposed  that  the  insurgents  might  be  quelled,  and 
peace  might  be  restored,  without  requiring  a  large  mili 
tary  force,  and  without  involving  those  who  did  not 
actively  participate  in  overt  acts  of  treason. 

Hence  the  government,  relying  upon  the  patriotism 
of  the  people,  and  confident  in  its  strength,  exhibited  a 
generous  forbearance  towards  the  insurrection. 

When,  at  last,  75,000  of  the  militia  were  called  out, 
the  President,  still  relying  upon  the  Union  sentiment 
of  the  South,  announced  his  intention  not  to  injure 
peaceful  citizens,  but,  on  the  contrary,  to  regard  them 
as  still  under  the  protection  of  the  constitution.  The 
action  of  Congress  was  in  accordance  with  this  policy. 
The  war  waged  by  this  government  was  then  a  per 
sonal  war  against  rebels ;  a  war  prosecuted  in  the  hope 
and  belief  that  the  body  of  the  people  were  well  dis 
posed  towards  the  Union,  and  would  soon  right  them 
selves  by  the  aid  of  the  army.  Hence  Congress 
declared,  and  the  President  proclaimed,  that  it  was  not 
their  purpose  to  interfere  with  private  rights  or  domes 
tic  institutions. 


THE  PROGRESS   OF  EVENTS   CHANGED  THE  CHARACTER  OF  THE  WAR, 
AND  REQUIRED  THE  USE   OF  MORE  EFFECTIVE  WAR  POWERS. 

This  position  of  the  government  towards  the  rebel 
lious    States  was   forbearing,  magnanimous,  and  just, 


236  RECONSTRUCTION    OF   THE   UNION. 

while  the  citizens  thereof  were  generally  loyal.  But 
the  revolution  swept  onward.  The  entire  circle  of  the 
southern  States  abandoned  the  Union,  and  carried  with 
them  all  the  border  States  within  their  influence  or 
control. 

Having  set  up  a  new  government  for  themselves ; 
having  declared  war  against  us ;  having  sought  foreign 
aid ;  having  passed  acts  of  non-intercourse ;  having 
seized  public  property,  and  made  attempts  to  invade 
States  which  refused  to  serve  their  cause  ;  having  raised 
and  maintained  large  armies  and  an  incipient  navy ; 
assuming,  in  all  respects,  to  act  as  an  independent,  hos 
tile  nation,  at  war  with  the  United  States  —  claiming 
belligerent  rights  as  an  independent  people  alone  could 
claim  them,  and  offering  to  enter  into  treaties  of  alli 
ance  with  foreign  countries  and  treaties  of  peace  with 
ours  —  under  these  circumstances  they  were  no  longer 
merely  insurgents  and  rebels,  but  became  a  belligerent 
public  enemy.  The  war  was  no  longer  against  "  cer 
tain  persons "  in  the  rebellious  States.  It  became  a 
territorial  war;  that  is  to  say,  a  war  by  all  persons 
situated  in  the  belligerent  territory  against  the  United 
States. 

CONSEQUENCES   RESULTING  FROM  CIVIL  TERRITORIAL   WAR. 

It  is  a  settled  rule  of  public  law  that  whenever  two 
nations  are  at  war,  every  subject  of  one  belligerent  is  a 
public  enemy  of  the  other.*  If  we  were  at  war  with 
England,  every  Englishman  would  become  our  public 
enemy,  irrespective  of  his  personal  feelings  towards  us. 

*  See  Twiss,  Law  of  Nations,  pp.  80-82,  sect.  43;  Vattel,  Droit  des  Gens,  L.  II.  c.  2; 
Prize  Cases,  p.  141,  248,  and  cases  in  the  Appendix. 


RECONSTRUCTION    OF    THE   UNION.  237 

However  friendly  he  might  be  towards  America,  his 
ships  on  the  sea  would  be  liable  to  capture,  his  prop 
erty,  situated  in  this  country,  would  be  subject  to  confis 
cation,  and  himself  would  be  liable  to  be  killed  in  battle. 
An  individual  may  be  a  personal  friend,  and  at  the 
same  time  a  public  enemy,  of  the  United  States. 
When  the  civil  war  in  America  became  territorial, 
every  citizen  residing  in  the  belligerent  districts  be 
came  our  public  enemy,  irrespective  of  his  private 
sentiments,  whether  loyal  or  disloyal,  friendly  or  hos 
tile,  unionist  or  secessionist,  innocent  or  guilty.  As 
public  enemies  these  insurgents  claim  to  be  ex 
changed  as  prisoners  of  war.  They  deny  our  right 
to  hang  them  as  murderers  or  pirates.  As  public  en 
emies  they  assume  authority  to  make  war  upon  us, 
and  to  repudiate  many  obligations  which  they  would 
voluntarily  perform  if  they  should  acknowledge  the 
binding  power  or  seek  the  protection  of  our  consti 
tution.  If  they  had  sought  to  secure  State  rights, 
under  that  constitution,  they  would  not  have  violated 
every  one  of  its  provisions  which  limit  the  powers  of 
States.  Asserting  no  such  rights,  they  claim  immunity 
as  States,  as  a  people,  or  as  individuals,  from  all  obliga 
tions  to  this  government  or  to  the  United  States. 

WHEN  DID  THE  REBELLION  BECOME  A  TERRITORIAL   WAR? 

This  question  has  been  settled  by  the  Supreme  Court 
of  the  United  States,  in  the  case  of  the  Hiawatha, 
decided  on  the  9th  of  March,  1863.  In  that  case, 
which  should  be  read  and  studied  by  every  citizen  of 
the  Union,  the  members  of  the  court  differed  in  opinion 
as  to  the  time  when  the  war  became  territorial.  The 
majority  decided,  that  when  the  fact  of  general  hostili- 


238  RECONSTRUCTION   OF   THE   UNION. 

ties  existed,  the  war  was  territorial,  and  the  Supreme 
Court  was  bound  to  take  judicial  cognizance  thereof. 
The  minority  argued  that,  as  Congress  alone  had  power 
to  declare  war,  so  Congress  alone  has  power  to  recog 
nize  the  existence  of  war ;  and  they  contended  that  it 
was  not  until  the  Act  of  Congress  of  July  13,  1861, 
commonly  called  the  Non-intercourse  Act,  that  a  state 
of  civil,  territorial  war  was  legitimately  recognized.  All 
the  judges  agree  in  the  position  "  that  since  July  13, 
1861,  there  has  existed  between,  the  United  States  and 
the  Confederate  States,  civil,  territorial  war." 

WHAT  ARE  THE  EIGHTS  OF  THE  PUBLIC   ENEMY  SINCE   THE   REBEL- 
LION  BECAME  A  TERRITORIAL  CIVIL   WAR. 

The  Supreme  Court  have  decided,  in  the  case  above 
named,  in  effect :  *     «  That  since  that  time  the  United 


*  If  this  decision  be  restricted  to  its  most  technical  and  narrow  limits,  the 
only  point  actually  decided  was,  that  the  captured  vessels  and  cargoes  were 
lawful  prize.  The  parties  before  the  court  are  alone  bound  by  the  judgment. 
Viewed  in  like  manner,  the  only  point  decided  in  the  case  of  Dred  Scott 
was,  that  the  court  had  no  jurisdiction  of  the  matter.  Nevertheless,  learned 
judges  have  taken  occasion  to  express  opinions  upon  legal  or  political  ques 
tions.  Their  opinions  are  of  great  importance,  not  because  they  are  or  are 
not  technical  decisions  of  points  in  issue,  but  because  they  record  the  delib 
erate  judgment  of  those  to  whom  the  same  questions  will  be  referred  for 
final  determination.  The  judge  who  has  pronounced  an  extra-judicial  opinion, 
and  has  placed  it  upon  the  records  of  the  court,  is  not,  it  may  be  said, 
bound  to  follow  it ;  but  it  is  equally  true,  that  the  court  is  never  bound  to 
follow  its  previous  most  solemn  "  decisions.  "  These  decisions  may  be,  and 
often  have  been,  modified,  overruled,  or  disregarded  by  the  same  court  which 
pronounced  them.  If  the  members  of  a  judicial  tribunal,  though  differing 
upon  minor  questions,  agree  upon,  certain  fundamental  propositions,  it  is 
worse  than  useless  to  deny  that  these  propositions,  even  though  not  "techni 
cally  decided, "  have  the  authoritative  sanction  of  the  court.  The  unani 
mous  agreement  of  all  the  members  of  a  judicial  court  to  certain  principles, 
affords  to  the  community  as  satisfactory  evidence  of  their  views  of  the  law 
as  could  be  derived  from  a  decision  in  which  these  principles  were  technically 
the  points  in  controversy.  It  is  for  these  reasons  that  it  has  been  stated  in 


RECONSTRUCTION    OF   THE   UNION.  239 

States  have  full  belligerent  rights  against  all  persons 
residing  in  the  districts  declared  by  the  President's 
Proclamation  to  be  in  rebellion." 

That  the  laivs  of  war,  "  whether  that  war  be  civil  or  inter 


qualified  language  "  that  the   Supreme  Court  have  decided  in  effect "  the 
propositions  quoted  from  their  opinions. 

To  show  wherein  all  the  judges  agree,  the  following  extracts  are  collected 
from  the  Decision  and  from  the  Dissenting  Opinion. 

EXTRACTS  FROM  THE   OPINION   OF  THE   COURT. 

"  As  a  civil  war  is  never  publicly  proclaimed  eo  nomine,  No    declaration 

,         .   .  .  ,,     ,     .  of  war  is  neces- 

against  insurgents,  its    actual   existence   is   a  tact  m  our  sary  jn  case  Of 

domestic  history,  which  the  court  is  bound  to  notice  and  to  cml  war- 
know.    The  true  test  of  its  existence,  as  found  in  the  writings  Test  of  its  ex- 
of  the  sages  of  the  common  law,  may  be  thus  summarily 
stated :    '  When  the  course  of  justice  is  interrupted  by  revolt, 
rebellion,  or  insurrection,  so  that  the  courts  of  justice  can 
not  be  kept  open,  CIVIL  WAR  EXISTS,  and  hostilities  may 

be  prosecuted  on  the  same  footing  as  if  those  opposing  the  Rebels    to    be 
r.       .  .        .         7.         ,7.      7       -i.c        treated    as    for- 

government  were  foreign  enemies  invading  the  land,     bee  ejgn  iavaders. 

2  Black  R.  667,  668. 

"  They  (foreign  nations)  cannot  ask  a  court  to  affect  a 
technical  ignorance  of  the  existence  of  a  war,  which  all  the 
world  acknowledges  to  be  the  greatest  civil  war  known  in 
the  history  of  the  human  race,  and  thus  cripple  the  arm  of 
the  government,  and  paralyze  its  powers  by  subtle  definitions 
and  ingenious  sophisms.  The  law  of  nations  is  also  called 
the  law  of  nature.  It  is  founded  on  the  common  sense  as 
well  as  the  common  consent  of  the  world.  It  contains  no 
such  anomalous  doctrine,  as  that  which  this  court  is  now, 
for  the  first  time,  desired  to  pronounce,  to  wit,  '  that  insur 
gents,  who  have  risen  in  rebellion  against  their  sovereign, 
expelled  her  courts,  established  a  revolutionary  government, 
organized  armies,  and  commenced  hostilities,  are  not  enemies, 
because  they  are  TRAITORS  ;  and  a  war  levied  on  the  govern 
ment  by  traitors,  in  order  to  dismember  and  destroy  it,  is  not 
a  war  because  it  is  an  "  insurrection.  " 

Whether  the  President,  in  fulfilling  his  duties  as  command-  President    must 

,  .   /. .  .  ,  .  ,  ,     decide    whether 

er-m-cmef  in  suppressing  an  insurrection,  has  met  with  such  the  enemy  shall 

armed  hostile  resistance,  and  a  civil  war  of  such  alarming  pro-  gerents?Gd  belU" 
portions,  as  will  compel  him  to  accord  to  them  the  character 


240  KECONSTKUCTION    OF   THE   UNION. 

gentes,  converts  every  citizen  of  the  hostile  State  into  a 
public  enemy )  and  treats  him  accordingly,  whatever  may 
have  been  his  previous  conduct. " 

That  all  the  rights  derived  from  the  laws  of  war 


Court  must  fol-  of  belligerents,  is  a  question  to  be  decided  by  him,  and  this 
low  the  decision  ,  ,  7  ,  ,1  j  •  •  i  '  PI  7., 

of  the  President,  court  must  be  governed  by  the  decision  and  acts  of  the  poht- 

ical  department  of  the  government  to  which  this  power 
was  intrusted.  He  must  determine  what  degree  of  force  the 
crisis  demands."  The  proclamation  of  blockade  is  of  itself 
official  and  conclusive  evidence  to  the  court  that  a  state  of 
war  existed  which  demanded  and  authorized  a  recourse  to 
such  a  measure,  under  the  circumstances  peculiar  to  the 
case. 

Belligerent  right  "  The  right  of  one  belligerent,  not  only  to  coerce  the  other 
to  seizure  and  T  7.  .  /.  '  7  ,  7  ,  .77.  ,  , 

destruction     of  oy   direct  jorce,  out  also  to  cripple  his  resources   by   the 

ty  6<y  allPSnds~  seizure  or  destruction  of  his  property,  is  a  necessary  result 
on  land  or  sea.  '  Of  a  state  of  war.  Money  and  wealth,  the  products  of 
agriculture  and  commerce,  are  said  to  be  the  sinews  of 
war,  and  as  necessary  in  its  conduct  as  numbers  and  phys 
ical  force.  Hence  it  is,  that  the  laws  of  war  recognize  the 
right  of  a  belligerent  to  cut  these  sinews  of  the  power  of  the 
enemy  by  capturing  his  property  on  the  high  seas.  "  Page 
671. 

CONFISCATION. 

All  persons  re-  "  All  persons  residing  within  this  territory  (seceded  States) 
gerenb  'districts  whose  property  may  be  used  to  increase  the  revenues  of  the 
mLfimd0  their  hostile  power,  are,  in  this  contest,  liable  to  be  treated  as 

property  liable  enemies,  though  not  foreigners.  Theii  have  cast  off  their 
to  be  captured.  77 

allegiance,  and  made  war  on  their  government,  and  are  none 

the  less  enemies  because  they  are  traitors.  "  Opinion, 
page  674. 

EXTRACTS   FROM  THE  DISSENTING   OPINION. 

Public  war  enti-  "A  contest  by  force,  between  independent  sovereign  States, 
tothe  rights  of  *s  ca^ed  &  public  war  ;  and  when  duly  commenced,  by  procla- 
*1118*  mation  or  otherwise,  it  entitles  both  of  the  belligerent  parties 


to  all  the  rights  of  war  against  each  other,  and  as  respects 
neutral  nations.  "     Page  686,  687. 

Legal       conse-      "  The  legal  consequences  resulting  from  a  state  of  war 
queuces  of  war,  ,  . 

shown  by  inter-  between  two  countries,  at  this   day,   are  well  understood, 
national  law.       an(j  w^  ke  foun^  described  in  every  approved  work  on  the 
subject  of  international  law." 


war. 


RECONSTRUCTION  OF  THE  UNION.          241 

may  now.  since  1861,  be  lawfully  and  constitutionally 
exercised  against  all  the  citizens  of  the  districts  in 
rebellion.* 


"  The  people  of  the  two  countries  immediately  become  the  People  of  the 
enemies  of  each  other,  &c.  .  ...  All  the  property  of  the  bSome^i^ 
people  of  the  two  countries,  on  land  or  sea,  is  subject  to  enemies. 
capture  and  confiscation  by  the  adverse  party  as  enemies'  pro-  All  enemies' 
perty,  with  certain  qualifications  as  it  respects  property  on  andSis  subject 
land.  (Brown  vs.  U.  S.,  8  Cranch,  110.)  All  treaties  conffiion. and 
between  the  belligerent  parties  are  annulled."  Page  677. 

•'  This  great  and  pervading  change  in  the  existing  condi 
tion  of  a  country,  and  in  the  relation  of  all  her  citizens  or 
subjects,  external  and  internal,  is  the  immediate  effect  and 
result  of  a  state  of  war."  Page  688. 

"  In  the  case  of  a  rebellion,  or  resistance  of  a  portion  of  The  government 
the  people  of  a  country,  against  the  established  government,  may    recoffnize 
there  is  no  doubt,  if,  in  its  progress  and  enlargement,  the 
government  thus  sought  to  be  overthrown,  sees  Jit,  it  may,  by 
the  competent  power,  recognize  or  declare  the  existence  of  a 
state  of  civil  war,  which  will  draw  after  it  all  the  conse-  Civil  war  draws 
quences  and  rights  of  war,  between  the  contending  parties,  ri^Ms^of^varJ 
as  in  the  case  of  a  public  war,   Mr.   Wheaton  observes,  fforSVar  "* 
speaking  of  civil  war  :    "  But  the  general  usage  of  nations 
regards  such  a  war  as  entitling  both  the  contending  parties  to 
all  the  rights  of  war,  as  against  each  other,  and  even  as 
respects  neutral  nations."     Page  688. 

"  Before  this  insurrection  against  the  established  govern 
ment  can  be  dealt  with  on  the  footing  of  a  civil  war,  within 
the  meaning  of  the  law  of  nations  and  the  Constitution  of 
the  United  States,  and  which  will  draw  after  it  belligerent 
rights,  it  must  be  recognized  or  declared  by  the  war-making 
power  of  the  government.  No  power  short  of  this  can  Civil  war  must 
change  the  legal  status  of  the  government,  or  the  relations 
of  its  citizens  from  that  of  peace  to  a  state  of  war,  or  bring  j*  ^f'bSlJ^ 
into  existence  all  those  duties  and  obligations  of  neutral  ent  rights.  l° 
third  parties,  growing  out  of  a  state  of  war.  The  war  power 
of  the  government  must  be  exercised  before  this  changed 
condition  of  the  government  and  people,  and  of  neutral  third 
parties,  can  be  admitted.  There  is  no  difference  in  this  re 
spect  between  a  civil  or  a  public  war."  Page  689. 

*  See  Lawrence's  note  to  Wheaton,  p.  522,  and  authorities  there  cited. 

31 


242  RECONSTRUCTION    OF    THE   UNION. 


THE  RIGHTS  OF  REBELS  AS  CITIZENS  OF  STATES,  AND  AS  SUBJECTS 
OF  THE  UNITED  STATES,  ARE,  ACCORDING  TO  THE  CONSTITUTION, 
TO  BE  SETTLED  BY  THE  LAWS  OF  WAR. 

Such  being  the  law  of  the  land,  as  declared  by  the 
Supreme  Court,  in  order  to  ascertain  what  are  the  legal 
or  constitutional  rights  of  public  enemies,  we  have  only 

Civil  war  attach-  "  It  must  be  a  war  in  a  legal  sense  (in  the  sense  of  the 
consequences1  of  law  of  nations,  and  of  the  Constitution  of  the  United  States) 
belligerent  j-0  attach  to  it  all  the  consequences  that  belong  to  belligerent 

once  recognized  rights.  Instead,  therefore,  of  inquiring  after  armies  and 
navies,  and  victories  lost  and  won,  or  organized  rebellion 
against  the  general  government,  the  inquiry  should  be  into 
the  law  of  nations,  and  into  the  municipal  and  fundamental 
laws  of  the  government.  For  we  find  there,  that  to  consti 
tute  a  civil  war.  in  the  sense  in  which  we  are  speaking, 
before  it  can  exist  in  contemplation  of  law,  it  must  be  recog 
nized  or  declared  by  the  sovereign  power  of  the  state ;  and 
which  sovereign  power,  by  our  Constitution,  is  lodged  in  the 
Congress  of  the  United  States.  Civil  war,  therefore,  under 
our  system  of  government,  can  exist  only  by  an  act  of 
Congress,  which  requires  the  assent  of  two  of  the  great  de 
partments  of  the  government,  the  executive  and  the  legis 
lative."  Page  690. 

Civil  war  con-  "The  laws  of  war,  whether  the  war  be  civil  or  inter  gentes, 
Iln^fthelfostne  as  we  have  seen,  convert  every  citizen  of  the  hostile  state 

state  into  a  pub-  jnlo  a  public  enemy,  and  treats  him  accordingly,  whatever 
lie  enemy.  . 

may  have  been  his  previous  conduct. 

Innocent      per-       "  Congress  alone    can   determine  whether  war  exists    or 
lawfully  bTpSn-  should  be  declared.     And  until  they  have  so  acted,  no  citizen 
lands'confi seated  of  tbe  state  can  be  Punisned  in  his  Person  or  property  unless 
as  enemies,  until  he  has  committed  some  offence  against  a  law  of  Congress, 
re°o|Szed    ^a  passed  before  the  act  was  committed,  which  made  it  a  crime 
state     of     civil  &nd  defined  the  punishment.     Until  then,  the  penalty  of 
confiscation  for  the  acts  of  others  with  which  he  had  no  con 
cern,  cannot  lawfully  be  inflicted." 

"By  the  Act  of  16  Geo.  III.,  1776,  all  trade  between  the 
colonies  and  Great  Britain  was  interdicted." 

Congress  did  "  From  this  time  the  war  (of  the  revolution)  became  a 
war^by  CAct"of  territorial,  civil  war  between  the  contending  parties,  with  all 
July  13, 1861  fa  rights  Ofwar  known  to  the  law  of  nations." 

"The  Act  of  Congress  of  July  13,  1861,  we  think  recog- 


RECONSTRUCTION    OF    THE   UNION.  243 

to  refer  to  the  settled  principles  of  the  belligerent  law 
of  nations  or  the  laws  of  war. 

Some  of  the  laws  of  war  are  stated  in  both  the  Opin 
ions  in  the  case  above  mentioned.  A  state  of  foreign 
war  instantly  annuls  the  most  solemn  treaties  between 
nations.*  It  terminates  all  obligations  in  the  nature  of 


nized  a  state  of  civil  war  between  the  government  and  the 
Confederate  States,  and  made  it  territorial."  Page  695. 

"We  agree,  therefore,  that  the  Act  of  the  13th  of  July, 
1861,  recognized  a  state  of  civil  war  between  the  govern 
ment  and  the  people  of  the  States  described  in  that  Procla 
mation  (of  August  16,  1861).  Page  696. 

"  But  this  (the  right  of  the  President  to  recognize  a  state 
of  civil  war  as  existing  between  a  foreign  government  and 
its  colonies)  is  a  very  different  question  from  the  one  before 
us,  which  is,  whether  the  President  can  recognize  or  declare 
a  civil  war,  under  the  Constitution,  with  all  its  belligerent 
rights,  between  his  own  government  and  a  portion  of  its  cit 

izens  in  a  state  of  insurrection.     That  power,  as  we  have  Courts    must 

z,  7  j.      n  TIT  7  .     follow    the    de- 

seen,  belongs  to   Congress.     We  agree  when  such  a  war  is  cision  of  the  po- 


recognized,  or  declared  to  exist  by  the  war-making  power, 
but  not  otherwise,  it  is  the  duty  of  courts  to  follow  the  decis 
ion  of  the  political  power  of  the  government."  Page  697. 

"  No  civil  war  existed  between  this  government  and  the  Civil  war  did 
States  in  insurrection  till  recognized  by  the  Act  of  Congress  July 
of  July  13,  1861.     The  President  does  not  possess  the  power, 
under  the  Constitution,  to  declare  war,  or  recognize  its  exist-  rights. 
ence  within  the  meaning  of  the  law  of  nations,  which  carries 
with  it  belligerent  rights,  and  thus  change  the  country  and 
all  its  citizens  from  a  state  of  peace  to  a  state  of  war.     This 
power  belongs   exclusively  to  the  Congress   of  the  United 
States,  and  consequently  the  President   had   no  power  to 
set  on  foot  a  blockade  under  the  law  of  nations,  and  the 
capture  of  the  vessel  and  cargo  in  all  the  cases  before,  in 
which  the  capture  occurred  before  the  13th  of  July,  1861, 
for  breach  of  blockade,  or  as  enemy's  property,  is  illegal 
and  void."     Page  699. 

Mr.  Chief  Justice  TANEY  and  Messrs.  Justices  CATKON 
and  CLIFFORD  concurred  with  Mr.  Justice  NELSON  in  the 
Dissenting  Opinion. 

*  See  2  Twiss,  68,  sect.  36. 


244  RECONSTRUCTION    OF    THE    UNION. 

compacts  or  contracts,  at  the  option  of  the  party  obli 
gated  thereby.  It  destroys  all  claims  of  one  belligerent 
upon  the  other.,  except  those  which  may  be  sanctioned 
by  a  treaty  of  peace.  A  civil  territorial  war  has  the 
same  effect,  excepting  only  that  the  sovereign  may 
treat  rebels  as  subjects  or  merely  as  belligerents.  Hence 
civil  war,  in  which  the  insurgents  have  become  public 
or  territorial  enemies,  instantly  annuls  all  their  rights 
or  claims  against  the  United  States,  under  the  con 
stitution  or  laws,  whether  that  constitution  be  called 
a  compact,  a  treaty,  or  a  covenant,  and  whether  the 
parties  to  it  were  States,  in  their  sovereign  capacity,  or 
the  people  of  the  United  States,  as  individuals.  Any 
other  result  would  be  as  incomprehensible  as  it  would 
be  mischievous.  A  public  enemy  cannot  lawfully  claim 
the  right  of  entering  Congress  and  voting  down  the 
measures  taken  to  subdue  him.*  Why  not  ?  Because, 
by  becoming  a  public  enemy,  he  has  annulled  and  lost 
his  rights  in  the  government,  and  can  never  regain 
them  except  by  our  consent/)- 

STATE 'RIGHTS  ARE  UNDER  OUR  CONTROL. 

If  the  inhabitants  of  a  large  part  of  the  Union  have, 
by  becoming  public  enemies,  surrendered  and  annulled 
their  former  rights,  the  question  arises,  Can  they  re 
cover  them  ?  Such  rights  cannot  be  regained  by  rea 
son  of  their  having  ceased  to  fight.  The  character  of 
public  enemies  having  once  been  stamped  upon  them 
by  the  laws  of  war,  remains  fixed  until  it  shall  have 
been,  by  our  consent,  removed.  To  stop  fighting  does 

*  By  Joint  Resolution  No.  12  (February  18,  1805),  Congress  declared  that  the  rebel 
States  were  not  entitled  to  vote  for  electors  of  President  and  Vice-President  of  the  United 
States.  By  the  reconstruction  acts  Congress  has  placed  them  under  military  government, 
and  has  carried  into  full  effect  the  rights  above  claimed. 

t  See  Note  on  "  Belligerents,"  p.  425. 


RECONSTRUCTION    OF  THE   UNION.  245 

not  make  them  cease  to  be  public  enemies,  because 
they  may  have  laid  down  their  arms  for  want  of  powder, 
not  for  want  of  will.  Peace  does  not  restore  the  noble 
dead  who  have  fallen  a  sacrifice  to  treason,  nor  does 
it  revive  the  rights  once  extinguished  by  civil,  territo 
rial  war.  The  land  of  the  Union  belongs  to  the  people 
of  the  United  States,  subject  to  the  rights  of  individual 
ownership.  Each  person  inhabiting  those  sections  of 
the  country  declared  by  the  President's  Proclamation 
to  be  in  rebellion,  has  the  right  to  what  belongs  to  a 
public  enemy,  and  no  more.  He  can  have  no  right  to 
take  any  part  in  our  government.  That  right  does  not 
belong  to  an  enemy  of  the  country  while  he  is  waging 
war,  or  after  he  has  been  subdued.  A  public  enemy 
has  a  right  to  participate  in,  or  to  assume  the  govern 
ment  of  the  United  States,  only  when  he  has  conquered 
the  United  States.  We  find  in  this  well-settled  doctrine 
of  belligerent  law  the  solution  of  all  questions  in  relation 
to  State  rights.  After  the  inhabitants  of  a  district  have 
become  public  enemies,  they  have  no  rights,  either  State 
or  National,  as  against  the  United  Statejs.  They  are  bel 
ligerents  only,  and  have  retained  only  belligerent  rights. 

STATE  RIGHTS   ARE   NOT   APPURTENANT  TO   LAND. 

Suppose  that  all  the  inhabitants  living  in  South  Caro 
lina  should  be  swept  off.  so  that  solitude  should  reign 
throughout  its  borders,  unbroken  by  any  living  thing; 
would  the  State  rights  of  South  Carolina  still  exist  as 
attached  to  the  land  itself?  Can  there  be  a  sovereignty 
without  a  people,  or  a  State  without  inhabitants  ?  State 
rights,  so  far  as  they  concern  the  Union,  are  the  rights 
of  persons,  as  members  of  a  State,  in  relation  to  the 
general  government ;  and  when  a  person  has  become 
a  public  enemy,  then  he  loses  all  rights  except  the 


246  RECONSTRUCTION    OF   THE   UNION. 

rights  of  war.  And  when  all  the  inhabitants  have  (by 
engaging  in  civil,  territorial  war)  become  public  ene 
mies,  it  is  the  same,  in  legal  effect,  as  though  the  inhab 
itants  had  been  annihilated.  So  far  as  this  government 
is  concerned,  civil,  territorial  war  obliterates  from  dis 
tricts  in  rebellion  all  lines  of  States  or  counties;  the 
only  lines  recognized  by  war  are  the  lines  which  sep 
arate  us  from  a  public  enemy. 

FORFEITURE  NOT  CLAIMED— THE  RIGHT  OF  SECESSION  NOT  AD 
MITTED,  SINCE  CITIZENS  MAY  BE  DEEMED  BELLIGERENTS  AND 
SUBJECTS. 

Do  not  place  reliance  upon  the  common  law  doc 
trine  of  forfeitures  of  franchises  as  applicable  to  this 
revolution,  for  forfeiture  can  be  claimed  only  upon 
an  admission  of  the  validity  of  the  act  by  which  it 
has  been  effected.  The  belligerent  law  of  civil,  terri 
torial  war,  whereby  a  public  enemy  loses  his  rights  as  a 
citizen,  does  not  admit  the  right  of  secession.  No  mere 
vote  or  law  of  secession  can  make  an  individual  a  public 
enemy.  A  person  may  commit  heinous  offences  against 
municipal  law,  he  may  commence  hostilities  against  the 
government,  without  being  a  public  enemy.  To  be  a 
personal  enemy,  is  not  to  be  a  public  enemy  to  the 
country,  in  the  eye  of  belligerent  or  international  law. 
Whosoever  engages  in  an  insurrection  is  a  personal 
enemy,  but  it  is  not  until  that  insurrection  has  swelled 
into  territorial  war  that  he  becomes  a  public  enemy. 
It  must  also  be  remembered  that  the  right  of  secession 
is  not  conceded  by  enforcement  of  belligerent  law, 
since  in  civil  war  a  nation  has  the  right  to  treat  its 
citizens  either  as  subjects  or  belligerents,  or  as  both. 
Hence,  while  belligerent  law  destroys  all  claims  of 


RECONSTRUCTION    OF    THE    UNION.  247 

subjects  engaged  in  civil  war,  as  against  the  parent 
government,  it  does  not  release  them  from  their  du 
ties  to  that  government.  By  war,  they  lose  their 
rights,  but  do  not  avoid  their  obligations.  The  in 
habitants  of  the  conquered  districts  have  abandoned 
their  civil  and  political  privileges,  but  cannot  escape 
their  liabilities.  Whatever  may  be  left  to  them  besides 
the  rights  of  war,  will  be  that  which  we  may  choose 
to  concede.  It  is  for  us  to  dictate  to  them,  not  for  them 
to  dictate  to  us,  what  immunities  they  shall  enjoy. 


THE    PLEDGE   OF    THE   COUNTRY  TO  ITS    SOLDIERS,  ITS   CITIZENS,  AND 
ITS    SUBJECTS,    MUST   BE    KEPT   INVIOLATE. 

Among  the  war  measures  sanctioned  by  the  Presi 
dent,  to  which  he  has,  more  than  once,  pledged  his 
sacred  honor,  and  which  Congress  has  enforced  by 
solemn  laws,  is  the  liberation  of  slaves.  The  govern 
ment  has  invited  them  to  share  the  dangers,  the  honor, 
and  the  advantages  of  sustaining  the  Union,  and  has 
solemnly  promised  to  secure  their  freedom.  Whatever 
disasters  may  befall  our  arms,  whatever  humiliation  may 
be  in  store  for  us,  it  is  earnestly  hoped  that  we  may  be 
saved  the  unfathomable  infamy  of  breaking  the  nation's 
faith  with  Europe,  and  with  our  colored  citizens  and 
slaves.  If  the  rebellious  States  shall  be  allowed  to  re 
turn  to  the  Union  with  constitutions  guaranteeing  the 
perpetuity  of  slavery,  and  if  their  laws  shall  be  again 
revived  and  put  in  force  against  free  blacks  and  slaves, 
we  shall  at  once  invoke  upon  our  country,  in  all 
its  force  and  wickedness,  that  very  curse  which  has 
brought  on  the  war  and  its  terrible  train  of  suf 
ferings.  Slaveholders  are  now  fighting  for  the  per- 


248  KECONSTRUCTION    OF   THE    UNION. 

petuity  of  slavery.  Shall  we  hand  over  to  them,  at 
the  end  of  the  war,  just  what  they  have  been  fighting 
for?  Shall  all  our  blood  and  treasure  be  spilled  use 
lessly  upon  the  ground  ?  Shall  the  country  not  protect 
itself  against  the  evil  which  has  caused  all  our  woes? 
Will  you  breathe  new  life  into  the.  strangled  serpent, 
which,  without  your  aid,  will  perish  ? 

If  you  concede  State  rights  to  your  enemies,  what 
security  can  you  have  that  traitors  will  not  pass  State 
laws  which  will  render  the  position  of  the  blacks  intol 
erable,  or  reduce  them  all  to  slavery? 

Would  it  be  honorable  on  the  part  of  the  United 
States  to  free  these  men,  and  then  hand  them  over  to 
the  tender  mercy  of  slave  laws  ? 

Will  it  be  possible  that  local  slave  laws  should  exist 
and  be  enforced  by  slave  States  without  overriding  the 
rights  guaranteed  by  the  laws  of  the  country  to  all 
men,  irrespective  of  color  ? 

Will  you  run  the  risk  of  these  angry  collisions  of 
State  and  National  laws  while  you  have  the  remedy 
and  antidote  in  your  own  hands  ? 

PLAN   OF  HE  CONSTRUCTION   RECOMMENDED. 

One  of  two  things  should  be  done  in  order  to  keep 
faith  with  the  country  and  save  us  from  obvious  peril. 
Allow  the  inhabitants  of  conquered  territory  to  form 
themselves  into  States,  only  by  adopting  constitutions 
such  as  will  forever  remove  all  cause  of  collision  with 
the  United  States,  by  excluding  slavery  therefrom,  or 
continue  military  government  over  the  conquered  dis 
trict,  until  there  shall  appear  therein  a  sufficient  number 
of  loyal  inhabitants  to  form  a  republican  government, 


RECONSTRUCTION    OF   THE    UNION.  249 

which,  by  guaranteeing  freedom  to  all,  shall  be  in  ac 
cordance  with  the  true  spirit  of  the  constitution  of  the 
United  States.  These  safeguards  of  freedom  are  requi 
site  to  render  permanent  the  domestic  tranquillity  of 
the  country  which  the  constitution  itself  was  formed  to 
secure,  and  which  it  is  the  legitimate  object  of  this 
war  to  maintain.* 

*  Note  to  Forty-third  Edition.  — Sec  page  57,  note.  See  also  the  Freedman's  Bureau 
acts,  March  3,  1865;  the  reconstruction  acts,  March  2,  1867  ;  the  act  for  the  admission  of 
Arkansas  to  representation  in  Congress,  June  22, 18C8  (chap.  09) ;  acts  for  admitting  North 
and  South  Carolina,  Louisiana,  Georgia,  Alabama,  and  Florida  to  representation  in  Con 
gress,  June  25,  1868  (chap.  70).  See  also  Note  on  "Reconstruction,"  p.  427-  the  Pres 
ident's  Messages,  pp.  250-256, 400-405;  Note  on  '«  Slavery,"  p.  393;  «  Slaves  in  the  Army  » 
p.  405;  Note  on  "Belligerents,"  p.  425. 

32 


250  RECONSTRUCTION    OF     THE    UNION. 


EXTRACT   FROM   THE   PRESIDENT'S   MESSAGE. 


EMANCIPATION    AND    ITS    RESULTS. 

WHEN  Congress  assembled  a  year  ago,  the  war  had  already  lasted  nearly 
twenty  months,  and  there  had  been  many  conflicts  on  both  land  and  sea, 
with  varying  results. 

The  rebellion  had  been  pressed  back  into  reduced  limits,  yet  the  tone  of 
public  feeling  at  home  and  abroad  was  not  satisfactory.  With  other  signs, 
the  popular  election,  then  just  past,  indicated  uneasiness  among  ourselves, 
which,  amid  much  that  was  cold  and  menacing,  the  kindest  words  coming 
from  Europe  were  uttered  in  accents  of  pity  that  we  were  too  blind  to  sur 
render  a  hopeless  cause. 

Our  commerce  was  suffering  greatly  by  a  few  armed  vessels,  built  upon 
and  furnished  from  foreign  shores,  and  were  threatened  with  such  additions 
from  the  same  quarter  as  would  sweep  our  trade  from  the  sea  and  raise  our 
blockade.  We  had  failed  to  elicit  from  European  governments  any  thing 
hopeful  on  this  subject. 

The  preliminary  Emancipation  Proclamation,  issued  in  September,  was 
running  its  assigned  period  to  the  beginning  of  the  new  year.  A  month 
later  the  final  proclamation  came,  including  the  announcement  that  colored 
men,  of  suitable  condition,  would  be  received  in  the  war  service. 

The  policy  of  emancipation  and  of  employing  black  soldiers  gave  to  the 
future  a  new  aspect,  about  which  hope,  and  fear,  and  doubt  contended  in 
uncertain  conflict. 

According  to  our  political  system,  as  a  matter  of  civil  administration,  the 
general  government  had  no  lawful  power  to  effect  emancipation  in  any 
State,  and  for  a  long  time  it  had  been  hoped  that  the  rebellion  could  be 
suppressed  without  resorting  to  it  as  a  military  measure. 

It  was  all  the  while  deemed  possible  that  the  necessity  for  it  might  come, 
and  that  if  it  should,  the  crisis  of  the  contest  would  then  be  presented.  It 
came  ;  and,  as  was  anticipated,  it  \vas  followed  by  dark  and  doubtful  days. 

Eleven  months  having  now  passed,  we  are  permitted  to  take  another 
review.  The  rebel  borders  are  pressed  still  further  back,  and  by  the  com 
plete  opening  of  the  Mississippi,  the  country  dominated  by  the  rebellion  is 
divided  into  distinct  parts,  with  no  practical  communication  between  them. 
Tennessee  and  Arkansas  have  been  cleared  of  insurgents,  and  influential 
citizens  in  each,  owners  of  slaves,  and  advocates  of  slavery  at  the  begin 
ning  of  the  rebellion,  now  declare  openly  for  emancipation  in  their  re- 


RECONSTRUCTION    OF     THE    UNION.  251 

spective  States ;  and  of  those  States  not  included  in  the  emancipation  proc 
lamation,  Maryland  and  Missouri,  neither  of  which,  three  years  ago,  would 
tolerate  restraint  upon  the  extension  of  slavery  into  territory,  only  dispute 
now  as  to  the  best  mode  of  removing  it  within  their  own  limits. 

Of  those  who  were  slaves  at  the  beginning  of  the  rebellion,  full  one 
hundred  thousand  are  now  in  the  United  States  military  service,  about  one 
half  of  which  number  actually  bear  arms  in  the  ranks,  thus  giving  the 
double  advantage  of  taking  so  much  labor  from  the  insurgent  cause,  and 
supplying  the  places  which  otherwise  must  be  filled  with  so  many  white 
men.  So  far  as  tested,  it  is  difficult  to  say  that  they  are  not  as  good  soldiers 
as  any. 

No  servile  insurrection  or  tendency  to  violence  or  cruelty  has  marked  the 
measures  of  emancipation  and  arming  the  blacks. 

These  measures  have  been  much  discussed  in  foreign  countries,  and  con 
temporary  with  such  discussion  the  tone  of  public  sentiment  there  is  much 
improved.  At  home  the  same  measures  have  been  fully  discussed,  sup 
ported,  criticised,' and  denounced,  and  the  annual  elections  following  are 
highly  encouraging  to  those  whose  official  duty  it  is  to  bear  the  country 
through  this  great  trial.  Thus  we  have  the  new  reckoning.  The  crisis 
which  threatened  to  divide  the  friends  of  the  Union  is  past. 

RECONSTRUCTION. 

Looking  now  to  the  present  and  future,  and  with  reference  to  a  resump 
tion  of  the  national  authority  with  the  States  wherein  that  authority  has 
been  suspended,  I  have  thought  fit  to  issue  a  Proclamation,  a  copy  of  which 
is  herewith  transmitted.  On  examination  of  this  proclamation  it  will  appear, 
as  is  believed,  that  nothing  is  attempted  beyond  what  is  amply  justified  by 
the  Constitution  ;  true,  the  form  of  an  oath  is  given,  but  no  man  is  coerced 
to  take  it.  The  man  is  only  promised  a  pardon  in  case  he  voluntarily  takes 
the  oath. 

The  Constitution  authorizes  the  executive  to  grant  or  withhold  the  par 
don  at  his  own  absolute  discretion,  and  this  includes  the  power  to  grant  on 
terms,  as  is  fully  established  by  judicial  and  other  authorities  ;  it  is  also 
proposed  that  if  in  any  of  the  States  named  a  State  government  shall  be,  in 
the  mode  prescribed,  set  up,  such  governments  shall  be  recognized  and 
guaranteed  by  the  United  States,  and  that  under  it  the  State  shall,  on  the 
constitutional  conditions,  be  protected  against  invasion  and  domestic 
violence. 

The  constitutional  obligation  of  the  United  States  to  guarantee  to  every 
State  in  the  Union  a  republican  form  of  government,  and  to  protect  the 
State  in  the  cases  stated,  is  explicit  and  full. 

But  why  tender  the  benefits  of  this  provision  only  to  a  State  government 
set  up.  in  this  particular  way  ?  This  section  of  the  Constitution  contem 
plates  a  case  wherein  the  element  within  a  State  favorable  to  republican 


252  RECONSTRUCTION     OF     THE     UNION. 

government  in  the  Union  may  be  too  feeble  for  an  opposite  and  hostile 
element  external  to  or  even  within  the  State,  and  such  are  precisely  the 
cases  with  which  we  are  now  dealing. 

An  attempt  to  guarantee  and  protect  a  revived  State  government,  con 
structed  in  whole  or  in  preponderating  part  from  the  very  element  against 
whose  hostility  and  violence  it  is  to  be  protected,  is  simply  absurd. 

There  must  be  a  test  by  which  to  separate  the  opposing  elements  so  as  to 
build  only  from  the  sound,  and  that  test  is  a  sufficiently  liberal  one  which 
accepts  as  sound  whoever  will  make  a  sworn  recantation  of  his  former 
unsoundness  ;  but  if  it  be  proper  to  require  as  a  test  of  admission  to  the 
political  body  an  oath  of  allegiance  to  the  Constitution  of  the  United  States 
and  to  the  Union  under  it,  why  not  also  to  the  laws  and  proclamations  in 
regard  to  slavery  ? 

These  laws  and  proclamations  were  enacted  and  put  forth  for  the  purpose 
of  aiding  in  the  suppression  of  the  rebellion.  To  give  them  their  fullest 
effect,  there  had  to  be  a  pledge  for  their  maintenance.  In  my  judgment, 
they  have  aided,  and  will  further  aid,  the  cause  for  which  they  were  intended. 

To  now  abandon  them,  would  be  not  only  to  relinquish  a  lever  of  power, 
but  would  also  be  a  cruel  and  astounding  breach  of  faith.  I  may  add  at 
this  point,  that  while  I  remain  in  my  present  position,  1  shall  not  attempt 
to  retract  or  modify  the  emancipation  proclamation,  nor  shall  I  return  to 
slavery  any  person  who  is  free  by  the  terms  of  that  proclamation,  or  by  any 
of  the  acts  of  Congress. 

For  these  and  other  reasons  it  is  thought  best  that  support  of  these 
measures  shall  be  included  in  the  oath,  and  it  is  believed  that  the  Executive 
may  lawfully  claim  it  in  return  for  pardon  and  restoration  of  forfeited  rights, 
which  he  has  clear  constitutional  power  to  withhold  altogether,  or  grant 
upon  the  terms  he  shall  deem  wisest  for  the  public  interest. 

It  should  be  observed,  also,  that  this  part  of  the  oath  is  subject  to  the 
modifying  and  abrogatory  power  of  legislation  and  Supreme  Judicial 
decisions* 

The  proposed  acquiescence  of  the  National  Executive  in  any  reasonable 
temporary  State  arrangement  for  the  freed  people,  is  made  with  the  view  of 
possibly  modifying  the  confusion  and  destitution  which  must,  at  best,  attend 
all  classes  by  a  total  revolution  of  labor  throughout  whole  States. 

It  is  hoped  that  the  already  deeply  afflicted  people  in  those  States  may 
be  somewhat  more  ready  to  give  up  the  cause  of  their  affliction,  if  to  this 
extent  this  vital  matter  be  left  to  themselves,  while  no  power  of  the  national 
executive  to  prevent  an  abuse  is  abridged  by  the  proposition. 

The  suggestion  in  the  proclamation  as  to  maintaining  the  political  frame 
work  of  the  States  on  what  is  called  reconstruction,  is  made  in  the  hope  that 
it  may  do  good  without  danger  of  harm  ;  it  will  save  labor  and  avoid  great 

*  It  must  not  be  forgotten  that  on  purely  political  questions  the  Supreme  Court  is  bound 
to  follow  the  decisions  of  the  executive  or  legislative  departments  of  government. 


RECONSTRUCTION     OF     THE     UNION.  253 

confusion  ;  but  why  any  proclamation  now  upon  this  subject  ?  This  ques 
tion  is  beset  with  the  conflicting  views  that  the  step  might  be  delayed  too 
long  or  be  taken  too  soon.  In  some  States  the  elements  for  resumption 
seem  ready  for  action,  but  remain  inactive,  apparently  for  want  of  a  rally 
ing  point  —  a  plan  of  action.  Why  shall  A  adopt  the  plan  of  B,  rather 
than  B  that  of  A ;  and  if  A  and  B  should  agree,  how  can  they  know  but 
that  the  general  government  here  will  reject  their  plan  ?  By  the  Procla 
mation  a  plan  is  presented,  which  maybe  accepted  by  them  as  a  rallying 
point,  and  which  they  are  assured  in  advance  will  not  be  rejected  here. 
This  may  bring  them  to  act  sooner  than  they  otherwise  would. 

The  objeclions  to  a  premature  presentation  of  a  plan  by  the  National 
Executive  consists  in  the  danger  of  committal  on  points  which  could  be 
more  safely  left  to  further  developments.  Care  has  been  taken  to  so  shap^ 
the  denouement  as  to  avoid  embarrassment  from  this  source,  saying  that  on 
certain  terms  certain  classes  will  be  pardoned  with  rights  restored. 

It  is  not  said  that  other  classes  or  other  terms  will  never  be  included, 
saying  that  reconstruction  will  be  accepted  if  presented  in  a  specified  way. 
It  is  not  said  it  will  never  be  accepted  in  any  other  way.  The  movements 
by  State  action  for  emancipation  in  several  of  the  States  not  included  in 
the  Emancipation  Proclamation,  are  matters  of  profound  giatulation  ;  and 
while  I  do  not  repeat  in  detail  what  I  have  heretofore  so  earnestly  urged 
upon  this  subject,  my  general  views  remain  unchanged,  and  I  trust  that 
Congress  will  omit  no  fair  opportunity  of  aiding  these  important  steps  to 
the  great  consummation. 

In  the  midst  of  other  cares,  however  important,  we  must  not  lose  sight 
of  the  fact  that  the  war  power  is  still  our  main  reliance.  To  that  power 
alone  can  we  look  yet  for  a  time  to  give  confidence  to  the  people  in  the  con 
tested  regions  that  the  insurgent  power  will  not  again  overrun  them. 
Until  that  confidence  shall  be  established,  little  can  be  done  any  where  for 
what  is  called  Reconstruction. 

Hence  our  chiefest  care  must  still  be  directed  to  the  army  and  navy,  who 
have  thus  far  borne  their  harder  part  so  nobly  and  well. 

And  it  may  be  esteemed  fortunate  that,  in  giving  the  greatest  efficiency 
to  these  indispensable  arms,  we  do  also  recognize  the  gallant  men,  from 
commander  to  sentinel,  who  compose  them,  and  to  whom,  more  than  to 
others,  the  world  must  stand  indebted  for  the  home  of  freedom,  disen 
thralled,  regenerated,  enlarged,  and  perpetuated. 

ABRAHAM   LINCOLN. 

December  8,  1863. 


254  RECONSTRUCTION     OF    THE    UNION. 


PROCLAMATION  OP  AMNESTY  BY  THE  PRESIDENT. 


THE  following  Proclamation  is  appended  to  the  Message :  — 

PROCLAMATION. 

Whereas,  in  and  by  the  Constitution  of  the  United  States,  it  is  provided 
that  the  President  shall  have  power  to  grant  reprieves  and  pardons  for 
offences  against  the  United  States,  except  in  cases  of  impeachment ;  and 
whereas,  a  rebellion  now  exists  whereby  the  loyal  State  governments  of 
several  States  have  for  a  long  time  been  subverted,  and  many  persons  have 
committed,  and  are  now  guilty  of  treason,  against  the  United  States  ;  and 
whereas,  with  reference  to  said  rebellion  and  treason,  laws  have  been  enacted 
by  Congress  declaring  forfeitures  and  confiscation  of  property  and  liber 
ation  of  slaves,  all  upon  conditions  and  terms  therein  stated,  and  also 
declaring  that  the  President  was  thereby  authorized,  at  any  time  thereafter, 
by  proclamation,  to  extend  to  persons  who  may  have  participated  in  the 
existing  rebellion  in  any  State  or  part  thereof,  pardon  and  amnesty,  with  such 
exceptions,  and  at  such  times,  and  on  such  conditions,  as  he  may  deem  expe 
dient  for  the  public  welfare  ;  and, 

Whereas,  the  congressional  declaration  for  limited  and  conditional  par 
don  accords  with  well-established  judicial  exposition  of  the  pardoning 
power  ;  and  whereas,  with  reference  to  said  rebellion,  the  President  of  the 
United  States  has  issued  several  proclamations  with  provisions  in  regard  to 
the  liberation  of  slaves ;  and  whereas,  it  is  now  desired  by  some  persons 
heretofore  engaged  in  said  rebellion  to  resume  their  allegiance  to  the 
United  States,  and  to  re-inaugurate  loyal  State  governments  within  and  for 
their  respective  States, 

Therefore,  I,  Abraham  Lincoln,  President  of  the  United  States,  do  pro 
claim,  declare,  and  make  known  to  all  persons  who  have  directly  or  by 
implication  participated  in  the  existing  rebellion,  except  as  hereinafter 
excepted,  that  a  full  pardon  is  granted  to  them  and  each  of  them,  with  res 
toration  of  all  rights  of  property,  except  as  to  slaves,  and  in  property  cases 
where  rights  of  third  parties  have  intervened,  and  upon  the  condition  that 
every  such  person  shall  take  and  subscribe  an  oath,  and  thenceforward  keep 
and  maintain  said  oath  inviolate,  and  which  oath  shall  be  registered  for  per 
manent  preservation,  and  shall  be  of  the  tenor  and  effect  following,  to  wit : 

I, ,  do  solemnly  swear,  in  presence  of  Almighty  God,  that  I  will 

henceforth  faithfully  support,  protect,  and  defend  the  Constitution  of  the 


RECONSTRUCTION     OF    THE    UNION.  255 

United  States  and  the  Union  of  the  States  thereunder,  and  that  I  will,  in 
like  manner,  abide  by  and  faithfully  support  all  acts  of  Congress  passed 
during  the  existing  rebellion  witli  reference  to  slaves,  so  long  and  so  far  as 
not  repealed,  or  modified,  or  held  void  by  Congress,  or  by  decree  of  the 
Supreme  Court,  and  that  I  will  in  like  manner  abide  by  and  faithfully  support 
all  proclamations -of  the  President,  made  during  the  existing  rebellion, 
having  reference  to  slaves,  so  long  and  so  far  as  not  modified  or  declared 
void  by  the  Supreme  Court.  So  help  me  God. 

The  persons  excepted  from  the  benefits  of  the  foregoing  provisions  are 
all  who  are  or  shall  have  been  civil  or  diplomatic  officers,  or  agents  of  the 
so-called  Confederate  Government ;  all  who  have  left  judicial  stations  under 
the  United  States  to  aid  rebellion  ;  all  who  are  or  shall  have  been  military 
or  naval  officers  of  said  so-called  Confederate  Government  above  the  rank 
of  colonel  in  the  army  and  of  lieutenant  in  the  navy,  and  all  who  left  seats 
in  the  United  States  Congress  to  aid  the  rebellion. 

All  who  resigned  commissions  in  the  army  or  navy  of  the  United  States 
and  afterwards  aided  the  rebellion,  and  all  who  have  engaged  in  any  way 
maltreating  colored  persons,  or  white  persons  in  charge  of  such,  otherwise 
than  lawfully  as  prisoners  of  war,  and  which  persons  may  have  been  found 
in  the  United  States  service  as  soldiers,  seamen,  or  in  any  other  capacity. 

And  I  do  further  proclaim,  declare,  and  make  known,  that,  whenever,  in 
any  of  the  States  of  Arkansas,  Texas,  Louisiana,  Mississippi,  Tennessee, 
Alabama,  Georgia,  Florida,  South  Carolina,  and  North  Carolina,  a  number 
of  persons,  not  less  than  one  tenth  in  number  of  the  votes  cast  in  such 
States  at  the  Presidential  election  of  the  year  of  our  Lord  one  thousand 
eight  hundred  and  sixty,  having  taken  the  oath  aforesaid,  and  not  having 
since  violated  it,  and  being  qualified  a  voter  by  the  election  law  of  the  State 
existing  immediately  before  the  so-called  act  of  secession,  and  excluding  all 
others,  shall  reestablish  a  State  government  which  shall  be  republican, 
and  in  no  loise  contravening  said  oath,  such  shall  be  recognized  as  the  true 
government  of  the  State,  and  the  State  shall  receive  these  under  the  benefit 
of  the  constitutional  provision,  ivhich  declares  that  the  United  States  shall 
guarantee  to  every  State  in  this  Union  a  republican  form  of  government, 
and  shall  protect  each  of  them  against  invasion,  on  application  of  the 
legislature,  or  the  executive,  where  the  legislature  cannot  be  convened,  and 
against  domestic  violence ;  and  I  do  further  proclaim,  declare,  and  make 
known,  that  any  provisions  which  may  be  adopted  by  such  State  govern 
ment  in  relation  to  the  freed  people  of  such  States  which  shall  recognize 
and  declare  their  permanent  freedom,  provide  for  their  education,  and  which 
may  yet  be  consistent,  as  temporary  arrangement,  with  their  present  con 
dition  as  a  laboring,  landless,  and  homeless  class,  will  not  be  objected  to  by 
the  National  Executive. 

And  it  is  suggested,  as  not  impropert  that  in  constructing  a  loyal  State 
government  in  a  State,  the  name  of  the  State,  the  boundary,  the  sub 
divisions,  the  constitution,  and  the  general  code  of  laws,  as  before  the 


250  RECONSTRUCTION    OF    THE    UNION. 

rebellion,  be  maintained,  subject  only  to  the  mssdificalion*  made  necessary 
by  the  conslitiori*  ktreinJstfore  ttatfJ,,  and  such  others,  if  any,  not  contra 
vening  said  condition*,  and  which  may  be  deemed  expedient  by  those 
framing  the  new  State  government. 

To  avoid  misunderstanding,  it  may  be  proper  to  say  that  this  proclama 
tion,  so  far  as  it  relates  to  State  government*,  has  no  reference  to  States 
wherein  loyal  State  governments  have  all  the  while  been  maintained. 

As  for  the  same  reason  it  may  be  proper  further  to  say,  that  vsltsMw 
mf/ff^jc/rn  :  *  yr  <-,:<•.'.  from  any  Ktale  *foM  le  admitted  to  tftt*,  <;on- 

sttiutionaUy  rvst%  ezdwivdy  with  tfa  repetitive  H'suze*,  arid  rwi  to  any 
exttrd  wiik  tfa  Executive;  and  still  further,  that  this  proclamation  is  intended 
to  present  the  people-  of  the  States  wherein  the  national  authority  has  been 
•Ufpended  and  loyal  State  governments  have  been  subverted,  a  m/x£e  in 
an4  6y  ^tc/t  </<«  nation's  I  fjuthority  awl  loyal  Ktate  government*  m/j.y  he 
established  within  nwh  Hfattz,  or  in  any  of  them ;  and  whDe  the  mode 
presented  is  the  best  the  Executive  can  suggest,  with  bin  present  impres 
sions,  it  muht  not  be  understood  that  no  other  possible  mode  would  be 
acceptable. 

Given  under  my  hand  at  the  City  of  Washington,  the  eighth  day  of 
December,  A.  I),  one  thousand  eight  hundred  and  sixty  three,  and 
of  the  Independence  of  the  United  States  of  America  the  eighty-eighth. 

ABRAHAM   LINCOLN. 


MILITARY  GOVERNMENT 


OF 


HOSTILE    TEEEITOET 


IN  TIME  OF  WAR. 


PREFACE  TO  MILITARY  GOVERNMENT. 


THE  following  pages  on  "  Military  Government  of  Hostile  Territory  in 
Time  of  War,"  were  written  early  in  1864,  in  answer  to  a  letter  of  the 
Hon.  J.  M.  Ashley,  M.  C.,  of  Ohio,  to  the  Secretary  of  War  (dated 
December  24,  1863),  which  enclosed  the  draft  of  a  bill  for  a  military 
provisional  government  over  insurrectionary  States,  proposed  by  Mr. 
Ashley  for  consideration  by  the  "  Special  Committee  of  the  House  on 
the  Rebellious  States."  In  that  letter  he  requested  the  Secretary  "to 
make  any  suggestions  he  might  have  to  make,"  or,  "if  he  had  not  time  to 
make  any,  to  submit  the  bill  to  the  Solicitor  of  the  War  Department  for 
his  opinion."  This  communication,  with  the  proposed  bill,  were  accord 
ingly  referred,  as  requested,  by  the  Secretary  of  War. 

The  subjects  discussed  are  of  great  and  growing  importance.  Clear 
and  just  views  of  the  rights,  powers  and  obligations  of  the  Government 
are  necessary  to  a  wise  and  consistent  administration  of  affairs  in  the  insur 
rectionary  districts,  during  their  transition  from  open  hostilities  to  their 
former  relations  to  the  Union.  A  careful  regard,  in  the  beginning, 
to  the  proper  limitations  of  authority  in  the  respective  departments  of 
this  government,  will  be  necessary  in  order  to  avoid  embarrassment  and 
confusion  in  the  end;  and  a  just  appreciation  of  the  war  powers  of  the 
President  will  tend  to  relieve  patriotic  citizens  from  apprehension,  even 
if  Congress  should,  for  the  present,  omit  further  legislation  on  these 
subjects. 

The  following  chapters  are  only  a  development  of  the  principles  stated 
in  the  "WAR  POWERS." 

W.  W. 

WASHINGTON,  D.  C.,  March  24,  1864. 


MILITARY    GOVERNMENT.* 


CHAPTER  I. 

WAR  — ITS   MEANS  AND  RESULTS. 

A  JUST  civil  war  may,  by  the  law  of  nations,  be  right 
fully  continued  until  the  purposes  for  which  it  was 
begun  shall  have  been  accomplished.  The  overthrow 
and  destruction  of  insurgent  armies,  and  the  occupa 
tion  of  hostile  territory  by  military  force,  are  but  pre 
liminary  measures,  which  should  lead  to  the  complete 
reestablishment  of  lawful  government  on  foundations 
strong  enough  to  insure  its  continued  supremacy.  To 
attain  that  result,  order  must  be  preserved,  and  domes 
tic  tranquillity  must  be  maintained,  after  active  hos 
tilities  shall  have  ceased;  and  means  must  be  devised  for 
restraining  lawless  aggressions  in  hostile  districts,  and 
for  securing  non-combatant  citizens  in  the  enjoyment 
of  civil  rights  ;  otherwise,  the  country  would  be  plunged 
into  anarchy ;  successful  campaigns  would  result  only 
in  waste  of  blood  ;  conquest,  however  costly,  could  not 
be  made  permanent  or  secure,  and  legitimate  govern 
ment  could  not  be  successfully  restored. 

SOME  FORM  OF  GOVERNMENT  IS  NECESSARY  TO  SECUR.E  A  CONQUEST. 

Though  military  power  must  be  used  to  secure 
the  possession  of  that  which  has  been  acquired  by 
arms,  yet  it  is  difficult,  by  aid  of  any  moderate  num- 

*  Note  to  Forty-third  Edition.  — See  Note  on  "  Military  Government  and  Reconstruc 
tion,"  p.  427.  Since  the  issue  of  the  tenth  edition  Congress  has  passed  the  Freedman's 
Bureau  act  (18G5),  the  act  for  the  military  government  of  the  rebel  States  (18G7),  and  the 
acts  of  April  10,  1SG9  (chaps.  17  and  18).  The  Supreme  Court  has  decided  the  case  of 
Georgia  v.  Stanton,  G  Wallace,  03  (1868-69).  See  Appendix,  p.  588. 


262  MILITARY     GOVERNMENT. 

ber  of  troops,  to  guard  and  oversee  an  extended  terri 
tory  ;  and  it  is  practically  impossible  for  any  army  to 
hold  and  occupy  all  sections  of  it  at  the  same  moment. 
Therefore,  if  its  inhabitants  are  permitted  to  remain  in 
their  domiciles  unmolested,  some  mode  must  be  adopted 
of  controlling  their  movements,  and  of  preventing  the 
commission  of  acts  of  hostility  against  their  conquerors 
or  of  violence  against  each  other.  Stragglers  from  our 
army  must  be  protected  from  murder,  commissaries' 
supplies  must  be  guarded  from  capture  by  guerrillas, 
and  non-combatants  must  be  secured  in  their  social 
rights,  and  punished  for  their  crimes.  The  total  disor 
ganization  produced  by  civil  war  requires,  more  even 
than  that  produced  by  foreign  war,  the  restraints  of 
martial  law.  In  countries  torn  by  intestine  commo 
tions,  neighbors  become  enemies ;  murders,  robberies, 
destruction  of  property,  and  all  forms  of  lawless  vio 
lence  are  common,  and,  in  the  absence  of  military  rule, 
would  go  unpunished.  Hence,  to  secure  the  firm  and 
peaceful  possession  of  a  conquered  province,  some  form 
of  government  must  be  established,  which  shall  have 
power  to  control  its  inhabitants,  and  to  prevent  them 
from  committing  crimes. 

Since  war  destroys  or  suspends  municipal  laws  in  the 
country  where  hostilities  are  carried  on,  no  government 
is  left  there  but  such  as  is  derived  from  the  laws  of 
war.  All  crimes  must  be  restrained  or  punished  by 
belligerent  law,  or  go  unwhipped  of  justice.  Hence 
every  case  of  wrong  must  be  dealt  with  by  force  of 
arms,  or  must  be  disposed  of  by  tribunals  acting  under 
sanction  and  authority  of  military  power.* 

*  See  Notes  to  Forty-third  Edition,  on  "  Military  Government,"  p.  427;  Address  of 
Chief  Justice  Chase,  June  6,  1867  (Appendix,  p.  59C) ;  Exparte  Milligan,  p.  560  ;  Note  on 
p.  430 ;  the  cases  of  The  Venice,  Mrs.  Alexander's  Cotton,  The  Peterhoff,  The  William 
Bagale.y,  and  other  cases  in  the  Appendix. 


MILITARY    GOVERNMENT.  263 


WHY  GOVERNMENT  IS     ESSENTIAL   TO   THE    SECURITY   OF     A   CONQUEST. 

The  necessity  of  provisional  or  temporary  govern 
ment  will  become  apparent  by  observing  the  condition 
of  a  people  who  have  been  overpowered  by  arms. 

Suppose,  by  way  of  illustration,  that  in  one  of  the 
border  slave  States,  in  time  of  profound  peace,  by  some 
sudden  and  unforeseen  catastrophe  all  the  officers  of 
civil  government  were  to  perish ;  that  the  judges,  sher 
iffs,  juries  and  all  courts  of  justice  were  to  withdraw 
from  that  region ;  that  the  jails  and  penitentiaries  were 
to  be  set  open  and  the  escaped  criminals  were  to  reap 
pear  amid  the  scenes  of  their  former  crimes ;  that  the 
officers  of  the  United  States  had  fled ;  that  all  public 
property  had  been  seized  by  violence  and  appropriated 
to  private  uses ;  that  all  restraints  of  law  or  of  force 
were  taken  from  wicked  and  unprincipled  men;  that 
"  might  made  right "  ;  that  debts  could  not  be  collected  • 
that  obligations  the  most  solemn  could  not  be  enforced ; 
that  men  and  women  could  be  shot,  hung,  or  murdered 
in  cold  blood,  if  they  differed  in  opinion  on  any  ques 
tion  of  religion,  of  politics,  or  of  settlement  of  accounts ; 
that  private  malice  could  be  gratified  by  the  midnight 
burning  of  a  neighbor's  house,  and  that  injuries  too  foul 
and  too  horrible  to  mention  could  be  perpetrated  with 
out  means  of  redress ;  that  all  the  laws  of  civilized  soci 
ety  and  the  most  sacred  rights  of  humanity  could  be 
violated  every  hour  of  the  day  or  night,  with  no  protec 
tion  for  the  innocent,  no  punishment  for  the  guilty. 

Such  a  state  of  things  would  inevitably  result  in  civil 
war.  Clans  and  associations  would  be  formed ;  the  whole 
people  would  sleep  on  their  arms ;  revenge  would  in 
flame  them;  havoc  and  slaughter  would  be  wide 
spread  ;  burning  villages  and  smoking  towns,  devastated 


264  MILITARY   GOVERNMENT. 

lands  and  general  ruin  would  demonstrate  to  all  ob 
servers  that  order  is  essential  to  the  social  existence  of  a 
community,  and  that  peace  can  be  maintained  only  by 
some  government  of  laws. 

As  the  absence  of  government  in  time  of  peace  would 
be  followed  by  such  calamitous  results,  how  could  they 
be  avoided  or  escaped  by  a  people  already  engaged 
in  civil  broils,  if  unprotected  by  military  force,  or  mil 
itary  administration  ?  In  the  rebellious  States  now  oc 
cupied  by  our  armies,  we  find  a  population  split  into  fac 
tions,  part  slave,  part  free  ;  traitors  fighting  against  loyal 
men  ;  non-combatants  hostile  to  friends  of  our  govern 
ment;  officers  attempting  to  collect  the  revenue  and 
to  enforce  the  blockade  by  bloody  encounters  with 
smugglers  and  freebooters ;  banditti  and  guerillas  with 
their  secret  allies,  murdering  in  cold  blood  our  sick  or 
wounded  soldiers ;  robbers,  plunderers,  cutthroats,  incen 
diaries,  and  assassins  wreaking  their  inhuman  passions 
even  upon  defenceless  women  and  children.  Never 
was  there  a  society,  whose  shattered  and  revolutionary 
condition  more  imperiously  required  a  firm  and  power 
ful  provisional  government,  to  be  established  directly 
after  the  cessation  of  active  hostilities.  To  lose  con 
trol  of  conquered  territory,  by  withdrawing  our  armies 
and  by  neglecting  to  organize  provisional  government 
over  it,  would  be  to  throw  away  all  that  has  been  gained 
by  war,  and  basely  to  violate  an  obligation  under  the 
laws  of  war  to  the  people  who  have  been  coerced  into 
submission  to  our  power. 

MILITARY   GOVERNMENT  A  MILD    FORM  OF  HOSTILITIES  —  A  CONCES 
SION—ITS  TENDENCY. 

The  maintenance  of  a  provisional  military  govern 
ment  is  an  economical  mode  of  continuing  hostilities 


MILITARY    GOVERNMENT.  265 

against  a  subjugated    people,  by  dispensing  with  the 
unnecessary  use  offeree. 

To  grant  a  government  of  any  kind  to  a  conquered 
people,  while  engaged  in  active  hostilities,  is  a  conces 
sion,  a  boon,  a  benefit,  not  an  unjustifiable  assumption 
of  rights.  The  law  of  war  justifies  the  use  of  brute  force 
as  the  means  of  governing  a  public  enemy.  The  judges 
under  that  law  are  military  officers  and  sometimes  com 
mon  soldiers,  without  aid  of  law-books,  counsellors,  ju 
ries,  codes,  statutes,  or  regulations  other  than  their  own 
will.  From  their  decrees  there  is  no  appeal;  judge, 
jury,  and  executioner  too  often  stand  embodied  in  a 
single  individual  at  the  but-end  of  a  Sharp's  rifle. 

In  the  civil  war  brought  upon  southern  rebels  by 
their  own  choice,  to  permit  them  to  be  governed  by 
rules,  regulations,  statutes,  laws,  and  codes  of  jurispru 
dence  ;  to  give  them  jurists  able  and  willing  to  abide 
by  standing  laws,  and  thus  to  restore  (as  far  as  is  con 
sistent  with  public  safety  and  the  secure  tenure  of 
conquest)  the  blessings  of  civil  liberty  and  a  just  ad 
ministration  of  laws  —  most  of  which  are  made  by  those 
on  whom  they  are  administered  —  is  an  act  of  magna 
nimity  worthy  of  a  great  people. 

Such  a  government,  though  founded  on  and  admin 
istered  by  military  power,  surely  tends  to  restore 
the  confidence  of  the  disloyal  by  giving  them  rights 
they  could  not  otherwise  enjoy,  and  by  protecting  them 
from  unnecessary  hardships  and  wrongs.  It  cannot 
fail  to  encourage  and  support  the  friends  of  the  Union 
in  disloyal  districts,  by  demonstrating  to  all,  the  for 
bearance  and  justice  of  those  who  are  responsible  for 
the  conduct  of  the  war. 
34 


266  MILITARY  GOVERNMENT. 


THERE  MUST  BE  A  MILITARY  GOVERNMENT  OR  NO  GOVERNMENT. 

When  the  country  can  no  longer  be  governed  by 
the  magistrate,  it  must  be  handed  over  to  the  soldier. 
When  law  becomes  powerless,  force  must  be  applied. 
When  civil  tribunals  fall,  military  tribunals  must  rise. 
Foreign  territory,  whether  acquired  through  conquest 
or  treaty,  does  not,  by  force  of  the  Constitution,  become 
entitled  to  self-government,*  nor  does  the  conquest  of 
public  enemies  within  the  domain  of  the  United  States 
confer  upon  them  the  right  of  self-government ;  for  the 
military  control  of  the  conqueror  is  alone  supreme  in 
hostile  regions.  There  being  in  the  belligerent  dis 
trict  in  the  South  no  power  or  authority  of  the  enemy 
which  can  be  recognized  as  legitimate  by  the  United 
States,  our  military  power  must  be  the  basis  on  which 
our  control  over  the  affairs  of  persons  living  there  must 
finally  rest.  By  conquest,  the  local  government  and 
the  courts  of  justice  are  deprived  of  their  power,  be 
cause  the  former  is  hostile,  and  the  latter  derive  their 
authority  from  a  public  enemy.  The  only  provisional 
government  which  can  be  practically  organized,  while 
war  lasts,  is  that  which  is  established  by  military  power, 
and  by  the  right  of  conquest.^  No  local  tribunal, 
in  a  conquered  district,  civil,  judicial,  political,  or 
military,  has  any  authority,  unless  recognized  as 
lawful  by  the  conqueror.  J  But  as  he  is  clothed 

*  3  Story,  Comm.  1318.    Am.  Ins.  Co.  v.  Canter,  I  Peters,  511,  542,  516. 
f  See  Notes  to  Forty-third  Edition,  on  "  Military  Government  "  and  "  Reconstruction." 
J  By  the  act  of  July  17,  18C2,  it  is  made  the  duty  of  the  President  to  seize  the  estate, 
etc.,  of  all  persons  acting  thereafter  as  governors  of  States,  members  of  legislatures,  or 
of  conventions,  or  judges  of  courts,  of  the  so-called  Confederate  States,  and  of  any  person, 
holding  any  office  under  either  of  the  said  States.    Such  persons  cannot,  therefore,  be 
recognized  by  our  government  otherwise  than  as  criminals. 


MILITARY    GOVERNMENT.  267 

only  with  military  authority,  he  can  establish  no  goy 
ernment  other  than  one  of  a  military  character.  There 
fore,  if  he  finds  it  expedient  to  administer  civil  or  mu 
nicipal  codes  of  law,  he  should  adopt  and  apply  them 
as  military  law,  following  therein,  as  far  as  practicable, 
the  rules  and  forms  of  civil  jurisprudence. 


THE  RIGHT  TO  ERECT  MILITARY  GOVERNMENTS  IS  AN  ESSENTIAL 
PART  OF  THE  WAR-POWER,  AND  IS  FOUNDED  IN  NECESSITY  AND 
SANCTIONED  BY  AUTHORITY. 

It  has  been  shown  that  justifiable  war  ought  to 
be  prosecuted  until  the  object  for  which  it  was  com 
menced  has  been  attained.  Our  object  Js  the  restora 
tion  of  the  authority  of  the  United  States  over  all  the 
territory  and  inhabitants  thereof,  a  result  which  can  be 
accomplished  with  the  least  injury  to  ourselves  and  to 
our  enemies  by  substituting,  as  far  as  safety  \vill  permit, 
a  temporary  government  over  them  by  military  law, 
instead  of  continuing  the  use  of  mere  force. 

Keason  and  experience  alike  demonstrate  the  neces 
sity  of  that  mode  of  regulating  a  hostile  community 
while  passing  through  the  intermediate  state  from  open 
and  general  warfare  to  the  reestablishment  of  peaceful 
institutions.  No  government  other  than  that  author 
ized  by  the  law  of  war  is  practically  useful,  or  can  be 
sustained,  until  peace  is  so  far  restored  that  the  enemy 
will  voluntarily  submit  to  the  laws  of  Congress. 

The  right  to  exercise  control  by  armed  force  in  time 
of  war  over  hostile  regions  is  a  necessary  part  of  the 
power  of  making  and  prosecuting  war.  If  the  people 
of  a  belligerent  locality  can  be  lawfully  captured  and 
held  as  prisoners  of  war,  and  can  thus  be  subjected  to 
the  orders  of  a  commanding  officer,  it  would  be  unrea- 


268  MILITARY    GOVERNMENT. 

sonable  to  suppose  that  the  same  captives  could  not  be 
held  subject  to  the  same  orders,  if  permitted  to  go  at 
large  within  the  limits  in  which  the  military  power  of 
that  officer  was  and  still  is  supreme. 

Absolute  necessity  is  the  foundation  and  justification 
on  which  the  right  to  enforce  military  government 
rests.  That  right  has  been  used  or  practically  acknowl 
edged  by  most  of  the  modern  civilized  nations.  It  is'  a 
right  founded  on  reason,  indispensable  in  practice,  and 
is  sanctioned  by  the  authority  of  writers  on  interna 
tional  law,  by  jurists  in  Europe,  and  by  the  Supreme 
Court  of  the  United  States.* 

*  Wheaton,  Law  of  Nations  (Lawrence's  edition),  99. 
Halleck,  International  Law,  778. 
Fleming  v.  Page,  9  How.  615  (Appendix,  p.  512). 
Cross  v.  Harrison,  16  How.  189  (Appendix,  p.  516). 
Leitensdorfer  v.  Webb,  20  How.  177  (Appendix,  p.  522). 
Am.  Ins.  Co.  v.  Canter,  1  Peters,  S.  C.  K.  542. 
U.  S.  v.  Gratiot,  14  Peters,  S.  C.  R.  526. 
Also,  see  cases  in  the  Appendix. 


CHAPTER    II. 

THE   CONSTITUTION   AUTHORIZES   THE   PRESIDENT   TO   ESTABLISH 
MILITARY   GOVERNMENTS. 

Whenever  the  President  is  called  on  to  repel  invasion 
or  to  suppress  rebellion  by  force,  if  the  employment  of 
military  government  is  a  useful  and  proper  means  of 
accomplishing  that  object,  the  Constitution  confers  on 
him  the  power  to  institute  such  government  for  that 
purpose. 

The  power  of  the  President  to  establish  military  gov 
ernments  is  derived  from  the  Constitution,  Art.  II,  Sec. 
1,  Cl.  1,  and  is  a  legitimate  exercise  of  his  authority  as 
Commander-in-Chief. 

Art.  IV.,  Sec.  4,  also  provides  that,  "The  United 
States  shall  guaranty  to  every  State  in  this  Union  a 
republican  form  of  government ;  and  shall  protect  each 
of  them  against  invasion,  and  on  application  of  the  Leg 
islature,  or  of  the  Executive  (when  the  Legislature  can 
not  be  convened)  against  domestic  violence." 

A  condition  of  public  affairs  like  that  now  existing  in 
certain  rebellious  States,  renders  military  government 
thereof  indispensably  necessary  to  enable  the  United 
States  to  perform  this  guaranty  of  the  Constitution. 
The  authority,  therefore,  to  institute  such  a  government 
for  that  purpose,  belongs  to  the  President,  because  he 
is  bound  to  see  the  laws  enforced ;  and  also,  under  Art. 
I.,  Sec.  8,  Cl.  18,  to  Congress,  because  it  is  bound  to 
pass  all  laws  necessary  and  proper  to  enable  the  Presi 
dent  to  execute  his  duties. 

269 


270  MILITARY    GOVERNMENT. 

The  topics  now  under  consideration  do  not  require 
any  examination  of  the  nature  or  extent  of  the  right  or 
duty  of  Congress,  or  of  the  President  as  an  executive 
officer,  to  carry  the  Art.  IV.,  Sec.  4,  into  effect.  The 
erection  and  maintenance  for  a  time,  by  executive  au 
thority,  of  a  provisional  government  in  any  State  or 
Territory  as  a  "  necessary  and  proper  means  "  of  carry 
ing  the  guaranties  of  the  Constitution  into  effect,  may 
be  the  subject  of  explanation  in  a  future  essay. 

The  right  of  Congress  is  beyond  question  to  establish 
temporary  territorial  or  provisional  governments  over 
those  parts  of  the  country  which,  having  been  engaged 
in  civil  war  against  the  United  States,  have  by  force  of 
arms  been  coerced  into  submission  to  our  government* 

It  is  not  necessary  in  this  place  to  make  further  ex 
planations  of  Articles  I.  and  IV.,  it  being  sufficient  for 
our  present  purpose  to  refer  to  the  powers  conferred  by 
the  second  Article. 

The  Constitution,  Article  II.,  Sec.  2,  Cl.  1,  provides 
that,  "  The  President  shall  be  Commander-in-Chief  of 
the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States  when  called  into  the  actual 
service  of  the  United  States." 

This  clause  by  necessary  implication,  confers  upon] 
the  Commander-in-Chief  of  the  Army  and  Navy,  the 
right  in  time  of  war  to  subject  public  enemies  to  mili 
tary  government  and  regulation.  No  limits  to  the 
power  of  the  President,  acting  as  a  military  commander, 
are  prescribed  in  the  Constitution.  The  laws  of  war, 
by  which  alone  his  operations  should  be  regulated, 
establish  his  right  to  erect  such  government,  and  to 
maintain  it  by  force  of  arms.  The  war  powers  of  the 

*  See  post,  Chap.  VI. 


MILITARY    GOVERNMENT.  271 

President  are  interpreted  and  controlled  only  by  the 
rules  of  belligerent  law.*  As  authority  to  call  into 
active  service  the  army  and  navy,  to  capture  or  kill 
our  enemies  in  battle,  to  seize  and  destroy  their 
property,  and  to  take  and  hold  their  lands  by  force, 
has  been  confided  to  the  President  without  limitation, 
by  deliberate  acts  of  legislation,  would  it  not  seem 
inconsistent  to  withhold  from  him  the  right  to  keep 
what  he  has  acquired  by  arms,  and  to  hold  in  his 
control,  while  war  lasts,  those  whom  it  was  his  duty 
to  overthrow  ? 

If  it  be  said  that  the  power  thus  claimed  is  not 
granted  to  the  President  in  express  terms.,  it  may  with 
equal  correctness  be  said  that  the  authority  to  carry  on 
war,  to  suppress  insurrections  or  to  repel  invasions,  or 
to  make  captures  on  land  or  sea,  is  not  conferred  upon 
him  in  express  terms.  The  Constitution  enables  the~ 
President  to  use  war  powers  in  no  other  way  than  by 
authorizing  him  under  certain  circumstances  to  call  into 
service  and  to  take  command  of  the  Army  and  Navy. 
But  Congress  is  empowered  to  provide  for  raising  and 
maintaining  armies,  and  to  make  rules  for  captures 
on  land  and  sea.  Hence  no  one  can  doubt  that  when 
an  army  is  raised,  and  captures  are  to  be  made,  the 
President,  being  placed  in  command,  has  the  right  to 
employ  these  forces  so  as  to  accomplish  the  purpose  for 
which  they  were  organized,  and  therefore  has  the  right 
to  capture  public  enemies  in  arms  as  unquestionably  as 

*  See  cases  subsequently  cited  :  — 

Fleming  v.  Page,  9  How.  615  (Appendix,  p.  512).      \ 
Cross  v.  Harrison,  16  How.  189  (Appendix,  p.  516).  ^ 
Leitensdorfer  v.  Webb,  20  How.  177  (Appendix,  p.  522). 
Wheaton,  99. 
See  also  "  War  Powers,"  p.  54. 


ZiZ  MILITARY    GOVERNMENT. 

if  that  right  had  been  conferred  on  him  in  plain  words 
by  the  Constitution. 

There  can  be  no  reason  to  doubt  that  the  army  is 
placed  under  the  supreme  command  of  the  Chief  Magis 
trate  for  all  purposes  for  which  offensive  or  defensive 
war  may  be  justly  waged.  If  he  has  authority  to  com 
mit  any  act  of  hostility  for  the  suppression  of  rebellion 
or  the  repelling  of  invasion,  he  has  a  right  to  commit 
all  acts  of  hostility  which  may  in  his  judgment  be  re 
quired  to  secure  success  in  his  military  operations ;  and 
he  has,  therefore,  the  same  right  to  erect  a  military  gov 
ernment  in  hostile  territory,  under  circumstances  justi 
fying  it,  as  to  perform  any  other  military  act.  The 
erection  of  such  government  over  the  territory  and 
persons  of  a  public  enemy  in  time  of  war,  is  an  act  of 
war ;  it  is,  in  fact,  continuing  against  them  a  species  of 
hostility  without  the  use  of  unnecessary  force.  It  is  a 
mode  of  retaining  a  conquest,  of  continuing  custody 
and  supervision  over  an  unfriendly  population,  and  of 
subjecting  malcontent  non-combatants  to  the  will  of  a 
superior  force  so  as  to  prevent  them  from  engaging  in 
hostilities  or  inciting  insurrections  or  breaches  of  the 
peace,  and  from  giving  aid  and  comfort  to  the  enemy. 
Large  numbers  of  persons  may  thus  be  held  in  subjec 
tion  to  the  moral  and  physical  force  of  comparatively 
few  military  men.  Contributions  may  be  levied,  prop 
erty  may  be  confiscated,  commerce  may  be  restrained 
or  forbidden,  and  an  unfriendly  population  may  be  held 
in  subjection  by  military  government,  for  the  same  rea 
sons  which  would  justify  the  repression  of  their  open 
hostilities  by  force  of  arms.  If  the  Constitution  allows 
the  President  to  go  to  war  and  to  conquer  the  public 
enemy,  the  greater  power  must  include  the  less ;  the 


MILITARY   GOVERNMENT.  273 

power  to  make  a  conquest  must  include  the  authority 
to  keep  and  maintain  possession  of  it,  while  war 
continues. 

No  one  would  doubt  our  right  to  occupy  a  hostile 
district  of  country  by  military  posts,  or  by  soldiers 
stationed  in  commanding  positions,  or  to  enforce  upon 
all  its  inhabitants  the  rigid  rules  of  martial  law. 

How  then  can  the  right  be  questioned  to  hold  the 
same  territory  by  a  small  number  of  soldiers,  administer 
ing  the  same  law,  under  the  same  authority,  whether 
these  military  men  be  called  by  their  ordinary  titles,  or 
be  styled  provost  marshals  or  military  governors  ? 

If  the  humanity  of  the  conqueror  allows  the  rigid 
rules  of  martial  law  to  be  relaxed,  and  permits  the  forms 
of  local  jurisprudence  to  be  continued  under  the  same 
authority,  so  far  as  it  may  be  done  consistently  with  the 
security  of  the  conquest,  on  what  principle  can  his  right 
to  do  so  be  denied  ? 

DUTY  OF  THE  CONQUEROR  TO  GOVERN  THOSE  WHOM  HE  HAS  SUB 
JUGATED. 

In  view  of  the  necessity  of  securing  the  ends  for 
which  war  is  waged,  and  the  consequences  following 
from  the  absence  of  government  over  conquered  terri 
tory,  it  is  undoubtedly  the  right  and  duty  of  the  con 
queror  to  erect  and  maintain,  during  war,  a  provisional 
military  government  over  districts  which  have  been  sub 
jected  to  his  power. 

This  right  is  recognized  and  confirmed  by  the  ac 
knowledged  laws  of  war,  and  by  the  decisions  of  the 
Supreme  Court  of  the  United  States ;  the  propriety  and 
necessity  of  its  enforcement  have  been  shown  by  our 
experience  in  New  Mexico  and  California,  and  in  the 
States  now  in  rebellion. 
35 


CHAPTER    III. 

DISTRIBUTION   OF    POWERS    UNDER    MILITARY    GOVERNMENT. 

Military  governments  control  and  regulate  a  great 
variety  of  public,  private,  civil,  criminal,  judicial,  legisla 
tive  and  military  affairs.  Their  powers  may  be  concen 
trated  in  a  single  officer,  acting  as  a  military  governor, 
or  they  may  be  distributed  among  several  persons  acting 
under  authority  of  the  Commander-in-Chief,  who  may 
appoint  one  as  commander,  another  as  governor,  a  third 
as  chief  justice,  and  others  as  collectors  of  customs,  in  the 
same  department. 

Among  the  various  modes  of  instituting  military  gov 
ernments,  one  is  by  a  proclamation  of  martial  law  and 
by  authorizing  or  appointing  courts  martial,  courts  of 
inquiry  arid  military  commissions  to  carry  that  law  into 
execution  over  belligerent  districts.  These  institutions 
are  best  adapted  to  localities  whose  inhabitants  are  too 
hostile  to  admit  of  milder  forms  of  administration. 

The  character  of  the  laws,  and  the  organization  of  the 
tribunals  now  authorized  ~by  the  statutes  to  administer  such 
government,  will  next  be  considered. 

DIFFERENT    KINDS    OF    LAW    OF    WAR. 

Martial  Laiu  consists  of  a  system  of  rules  and  princi 
ples  regulating  or  modifying  the  rights,  liabilities,  and 
duties,  the  social,  municipal,  and  international  relations 
in  time  of  war,  of  all  persons,  whether  neutral  or  bel 
ligerent,* 

Military  law  is  that  part  of  the  martial  law  of  the 

*  See  "  Military  Arrests,"  p.  106. 

274 


MILITARY    GOVERNMENT.  275 

land  designed  for  the  government  of  those  who  are 
engaged  ki  the  military  service. 

Of  the  rules  and  principles  of  martial  law,  many  have 
not  as  yet  been  reduced  to  the  form  of  statutes  or  reg 
ulations,  although  they  are  familiar  to  practitioners  in 
courts  martial.  The  69th  Article  of  War  refers  to  and 
adopts  them  as  part  of  the  martial  law.  They  may  be 
styled  the  " lex  non  scripta"  the  custom  of  war,  the  com 
mon  law  of  the  army. 

In  the  United  States,  martial  law  is  modified  by 
military  laws  made  by  Congress  as  articles  of  war,  by 
general  regulations  for  the  government  of  the  army, 
by  all  statutes  on  military  subjects  which  the  Consti 
tution  empowers  Congress  to  pass,  and  by  all  lawful  or 
ders  of  the  President,  as  Commander-in-Chief,  and  of  the 
Secretary  of  War,  or  officers  acting  under  them. 

Martial  law  thus  modified,  is,  when  in  force  under 
the  Constitution,  administered  within  or  without  the 
United  States  by  various  military  tribunals,  including 
courts  martial,  military  commissions,  and  courts  of  in 
quiry.* 

MILITARY    TRIBUNALS  —  HOW   AUTHORIZED THEIR    CHARACTERISTICS. 

The  war  courts  now  established  by  statutes  and  rec 
ognized  by  judicial  decisions  are  called  courts  martial, 
courts  of  inquiry ',  and  military  commissions.^ 

The  Constitution,  Art.  L,  Sect.  8,  Clause  14,  gives  Con 
gress  power  "  to  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces." 

*  See  Benet  on  Military  Law  and  Courts  Martial,  11;  Dehart  on  Military  Law  and 
Courts  Martial,  3. 

t  See  Note  to  Forty-third  edition,  p.  400,  on  "  Military  Commissions  as  regarded  by 
the  Supreme  Court  and  in  Congress,"  and  on  the  case  of  Ex  parte  Milligan,  in  the  Ap 
pendix. 


276  MILITARY   GOVERNMENT. 

The  16th  clause  declares  that  Congress  shall  have 
power  to  "provide  for  organizing,  arming,  and  disciplin 
ing  the  militia ;  and  for  governing  such  part  of  them  as 
may  be  employed  in  the  service  of  the  United  States." 

To  provide  for  disciplining  and  governing  militia  in 
the  service,  means  to  make  laws,  rules,  or  regulations  for 
their  discipline  and  government.  The  power  to  make 
them  would  be  inoperative,  unless  means  could  be  em 
ployed  to  administer  them.  Congress,  therefore,  has 
power  to  provide  means  as  well  as  rules  for  governing. 
No  uncertainty  is  left  upon  this  question ;  for  the  18th 
clause  of  the  same  section  gives  Congress  power  "  to 
make  all  laws  which  shall  be  necessary  and  proper  to 
carry  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  the  Constitution  in  the  Government 
of  the  United  States,  or  in  any  department  or  officer 
thereof." 

In  the  execution  of  this  authority,  Congress  has  pro 
vided  for  governing  the  army  by  erecting  military 
courts,  which  are  not  merely  necessary  and  proper,  but 
are  the  only  practical  means  yet  found  for  carrying  into 
execution  the  rules  and  regulations  so  enacted.  Such 
courts  are  therefore  sanctioned  as  positively  as  if  estab 
lished  by  express  language  in  the  Constitution. 

POWER    OF    THE    PRESIDENT    TO    ESTABLISH    COURTS    OF    WAR. 

Not  only  has  Congress  power  to  create  tribunals  to 
administer  "rules  and  regulations  for  governing  the 
army  and  the  navy,"  but  there  exists  another  indepen 
dent  power  to  create  and  establish  courts  with  juris 
diction  over  a  wider  range  of  subjects  and  of  persons. 
That  power  is  vested  by  the  Constitution  in  the  Presi 
dent,  as  Commander-in-Chief  of  the  army  and  navy, 


MILITARY    GOVERNMENT.  277 

when  in  actual  service  in  time  of  war,  and  is  a  branch 
of  the  power  to  erect  and  maintain  military  govern 
ments. 

Military  courts  are  a  usual  and  essential  part  of  the 
machinery  of  military  government ;  the  right  to  insti 
tute  the  one  necessarily  implies  the  right  to  organize 
the  other.  Courts  martial  have  jurisdiction  over  of 
fences  not  declared  punishable  by  any  law  of  Congress, 
and  persons  out  of  the  reach  of  any  but  military  pro 
cess. 

How  far  it  may  be  within  the  province  of  Congress  to 
control  the  operations  of  war  courts  instituted  by  the 
President,  need  not  be  here  discussed. 

As  has  been  said,  one  class  of  courts  of  war  may  be 
instituted  by  laws  of  Congress,  and  another  class  may 
be  created  by  the  President.     Both  are  under  his  con 
trol  as  military  chief  of  the  forces,  while  at  the  same 
time  he  is  bound    to  execute  the   laws  of   the  land. 
The    right    of   the    Commander-in-Chief,    as    well    as 
that    of   Congress,    to    create    military  tribunals,  has 
been  sanctioned  by  many  decisions  of  the    Supreme 
Court  of  the  United  States  * 

DO  COURTS   OF  WAR  EXERCISE  JUDICIAL  POWER  ? 

As  the  proceedings  of  war  courts  in  some  respects 
resemble  those  of  courts  of  law,  it  has  been  ques 
tioned  whether  they  exercise  any  part  of  the  judicial 
power  of  the  United  States  which  is  vested  by  the 
Constitution  (Art.  Ill,  Sect.  1)  in  "  one  Supreme 
Court  and  in  such  inferior  courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish."  It 
has  been  decided  by  the  Supreme  Court  of  the 
United  States,  that  military  tribunals  exercise  no  part 

*  See  authorities  in  the  Appendix. 


278 


MILITARY    GOVERNMENT. 


of  the  judicial  power,  but  only  a  portion  of  the  mili 
tary  power  of  the  Executive.  And  it  has  also  been 
determined  that  the  sentences  or  other  lawful  proceed 
ings  of  courts  martial  of  the  United  States  are  not  the 
subject  of  appeal  or  revision  in  any  judicial  courts  of 
the  States  or  of  the  United  States.* 

WOULD    JUDICIAL    COURTS    BE    USEFUL   AS    WAR    COURTS  ? 

If  it  be  said  that  judicial  courts  ought  to  employed 
for  the  administration  of  the  laws  of  war,  in  order  there 
by  to  preserve  the  safeguards  of  civil  liberty,  the 
answer  is  that  the  whole  system  of  judicial  courts 
would  be  worse  than  useless  in  armies  moving  from 
place  to  place.  Their  organization  is  incompatible  with 
the  administration  of  military  rights  and  remedies,  by 
reason  of  local  jurisdiction,  jury  trials,  territorial  limi 
tations  of  process,  and  slowness  of  procedure,  to  say 
nothing  of  the  inexperience  of  learned  jurists  in  mili 
tary  affairs. 

*  Vallandigham's  Case  (Appendix,  524);  Dynes  v.  Hoover,  20  How.  81,  82  (Appen 
dix,  520). 

See  Notes  to  Forty -third  Edition.  Opinion  delivered  by  Mr.  Justice  Davis  in  Ex  parte 
Milllgan  ;  and  remarks  on  this  decision,  Appendix,  4GO,  536. 


CHAPTER    IV. 

DIFFERENT    KINDS    OF   MILITARY    TRIBUNALS. 

I.    COURTS   MARTIAL. 

Courts  martial  have  been  recognized  or  established 
by  express  laws  of  Congress. 

The  Act  of  February  28,  1795,  provided  for  calling 
out  the  militia  and  also  for  the  organization  of  courts 
martial,  designating  the  officers  of  whom  they  should 
be  composed,  and  prescribing  punishments  by  these 
tribunals  for  persons  who  should  fail  (in  the  instances 
specified  in  Sect.  5)  to  obey  the  orders  of  the  President. 
These  courts  derived  their  authority  not  from  any  State 
law,  but  only  from  the  statutes  of  the  United  States.* 

It  is,  however,  not  questioned  that  either  of  the 
States  may  pass  laws  providing  for  the  trial  of  such 
delinquents  by  State  courts  martial.f 

The  act  of  April  10,  1806,  enacts  articles  of  war, 
regulates  (Article  64)  the  mode  of  organizing  gen 
eral  courts  martial;  gives  (Art,  65)  the  power  of 
appointing  them  to  general  officers  commanding  an 
army,  or  colonels  commanding  a  separate  department, 
and  institutes  inferior  courts  martial  (Art,  66) ;  limits 
and  requires  confirmation  of  sentences  (Arts.  65,  67),  and 

*  Commonwealth  v.  Irish,  3  S.  &  R.  176. 

S.  C.  5  Hall's  Law  Jour.  470. 

Meade  v.  Dep.  Marsh.  Va.  Dist.  5  Hall  L.  J.  536. 
f  Iloiiston  v.  Moore,  3  S.  &  R.  109. 

Martin  v.  Mott,  12  Wh.  R.  19. 

279 


280  MILITARY    GOVERNMENT 

provides  (Art.  69)  for  the  appointment  of  prosecuting 
officers  usually  called  Judge  Advocates.  This  act  reg 
ulates  the  oaths  of  officers  composing  the  court ;  the 
oath  of  the  Judge  Advocate,  the  punishment  of  the 
accused  for  standing  mute ;  it  provides  for  challenges, 
punishes  misbehavior  in  court,  contempts,  or  unbecom 
ing  conduct  of  persons  convicted  ;  it  lays  down  rules 
relating  to  testimony  and  to  oaths  and  depositions 
of  witnesses,  and  designates  (Sect.  99)  such  crimes  or 
misconduct  as  are  punishable  by  courts  martial. 

The  Act  of  Aug.  5, 1861,  gives  power  to  commanders 
of  divisions  or  separate  brigades  to  appoint  general 
courts  martial  in  time  of  war. 

The  decisions  of  these  tribunals  are  required  to  be 
reported  to,  and  to  be  reviewed  by,  some  superior  officer 
who  may  confirm,  modify,  or  set  them  aside.  But  the 
final  judgments  of  courts  martial  are  not  liable  to  be 
reviewed  or  reversed  by  any  judicial  court  of  the  United 
States* 

When  a  court  martial  has  once  acquired  jurisdiction 
of  the  person  and  the  subject-matter,  that  jurisdiction 
is  exclusive  of  civil  courts  for  that  offence.  But  the 
same  transaction  may  constitute  an  offence  against 
municipal  as  well  as  military  law,  and,  in  such  cases,  the 
offender  is  sometimes  liable  to  punishment  by  both. 

II.    MILITARY  COURTS  OF  INQUIRY. 

The  Act  of  April  10,  1806,  regulates  the  manner  of 
constituting  such  courts,  their  powers  and  proceedings. 
It  recognizes  the  right  of  organizing  them  by  the  gen- 

*  Dynes  v.  Hoover,  20  How.  79  (Appendix,  p.  520). 
Vallandigham's  Case,  Appendix,  p.  524. 


MILITARY   GOVERNMENT.  281 

erals  or  commanding  officers ;  power  is  conferred  upon 
these  courts  to  summon,  examine,  and  compel  attend 
ance  of  witnesses ;  the  right  of  the  accused  to  cross- 
examine  witnesses  is  secured ;  and  the  mode  of  authen 
ticating  proceedings  is  prescribed. 

But  courts  of  inquiry  being  liable  to  abuse,  are  pro 
hibited  in  all  cases,  except  when  demanded  by  the 
accused,  or  ordered  by  the  President  of  the  United 
States. 

The  Act  of  March  3,  1863,  Sect.  25,  gives  power  to 
every  Judge  Advocate  of  a  court  of  inquiry  to  issue 
process  to  compel  the  attendance  of  witnesses,  like  that 
which  State,  Territorial,  or  District  Courts  issue  in  places 
where  said  court  of  inquiry  is  held. 

These  and  other  statutes  show  that  this  class  of  mili 
tary  courts  is  fully  recognized  by  the  laws  of  the  United 
States. 

III.        MILITARY     COMMISSIONS,     INSTITUTED      BY     THE      COMMANDER-IN- 
CHIEF,     OR     UNDER    STATUTES. 

Military  commissions  were  first  made  familiar  to  the 
people  of  this  country  by  General  Orders  No.  287, 
issued  by  General  Scott  at  the  head-quarters  of  the 
army  in  the  National  Palace  of  Mexico,  Sept.  17,  1847. 

During  the  occupation  of  Mexico  by  our  army  many 
crimes  were  committed  by  hostile  individuals  against 
soldiers,  and  by  soldiers  against  the  Mexicans,  not  pun 
ishable  by  courts  martial  as  organized  under  the  Arti 
cles  of  War.  As  General  Scott  wrote  in  his  order,  "A 
supplemental  code  is  absolutely  needed.  That  unwritten 
code  is  martial  law,  as  an  addition  to  the  written  military 
code  prescribed  by  Congress  in  the  Rules  and  Articles 
of  War,  and  which  unwritten  code  all  armies  in  hostile 
countries  are  forced  to  adopt,  not  only  for  their  own 
36 


282  MILITARY    GOVERNMENT. 

safety,  but  for  the  protection  of  the  unoffending  inhabi 
tants  and  their  property  about  the  theatres  of  military 
operations,  against  injuries  on  the  part  of  the  army, 
contrary  to  the  laws  of  war.  .  .  .  For  this  purpose  it 
is  ordered  that  all  offenders  in  the  matters  aforesaid 
shall  be  promptly  seized,  confined,  and  reported  for 
trial  before  military  commissions  to  be  duly  appointed." 
These  commissions  were  appointed,  governed,  and  lim 
ited,  as  nearly  as  practicable,  in  the  same  manner  as 
had  been  prescribed  for  the  organization  of  courts 
martial;  their  proceedings  to  be  recorded,  reviewed, 
revised,  disapproved,  or  confirmed,  and  their  sentences 
executed,  in  nearly  the  same  way  as  in  the  cases  of  the 
proceedings  and  sentences  of  courts  martial,  "  provided 
that  no  military  commission  shall  try  any  case  clearly 
cognizable  by  any  court  martial,  and  provided  also  that 
no  sentence  of  a  military  commission  shall  be  put  in 
execution  against  any  individual  belonging  to  this  army, 
which  may  not  be  according  to  the  nature  and  degree 
of  the  offence,  as  established  by  evidence,  in  conformity 
with  known  punishments  in  like  cases  in  some  one  of 
the  States  of  the  United  States  of  America." 

"  The  administration  of  justice,  both  in  civil  and  crim 
inal  matters,  through  the  ordinary  courts  of  the  coun 
try,"  was  "  nowhere  and  in  no  degree  to  be  interrupted 
by  any  officer  or  soldier,  except"  in  certain  specified 
cases.  Martial,  military,  and  civil  or  municipal  law  were 
administered  in  Mexico  by  General  Scott,  under  such 
military  commissions,  in  all  the  cases  above  stated. 
Courts  of  this  description  were  instituted,  not  under  the 
authority  of  Congress,  but  by  the  general  war  power  of 
the  Commander-in-Chief,  a  power  which  was  fully  con 
firmed  and  established  by  the  Supreme  Court  of  the 
United  States.  Congress  has,  however,  recognized  in  ex 
press  terms  "military  commissions,"  in  the  act  of  March  57 


MILITARY    GOVERNMENT.  283 

1863^  Chap.  75;  and  having  authorized  the  appointment 
of  a  Judge  Advocate  General,  required  all  proceedings 
of  such  commissions  to  be  returned  to  him  for  revision 
and  record.  This  Act,  Section  30,  gives  military  com 
missions,  equally  with  courts,  martial  jurisdiction  in 
time  of  war,  in  cases  of  "  murder,  assault  and  battery 
with  intent  to  kill,  manslaughter,  mayhem,  wounding 
by  shooting  or  stabbing  with  an  intent  to  commit  mur 
der,  robbery,  arson,  burglary,  rape,  assault  and  battery 
with  intent  to  commit  rape,  and  larceny,  when  commit 
ted  by  persons  who  are  in  the  military  service  of  the 
United  States,  and  subject  to  the  articles  of  war." 

Spies  are  also,  by  the  same  Act,  Section  38,  punish 
able  with  death  by  sentence  of  a  military  commission.* 

The  several  statutes  above  cited  show  that  Congress, 
in  pursuance  of  its  powers  under  the  Constitution,  has 
recognized  and  established  courts  martial,  courts  of  in 
quiry,  and  military  commissions. 

Courts  of  the  same  denomination,  but  exercising  a 
much  broader  jurisdiction  of  persons  and  subjects,  have 
been  organized  and  established  by  the  President  of  the 
United  States,  under  the  war  powers  delegated  to  him 
by  the  Constitution,  as  Commander-in-Chief  of  the  army 
and  navy ;  and  the  binding  authority  of  such  courts 
has  been  admitted  and  solemnly  asserted  by  the  Su 
preme  Court  of  the  United  States.  Tribunals  instituted 
by  the  war  power  of  the  President  are  those  through 
which  it  is  most  usual  to  apply  the  laws  of  war  in  ene 
my's  country,  while  hostilities  are  in  progress,  and  for  a 
certain  length  of  time  after  a  declaration  of  peace. 

All  these  tribunals  constitute  usual  and  necessary 
parts  of  the  machinery  of  warfare,  and  are  the  essential 
instruments  of  that  military  government  by  which  alone 
the  permanency  of  conquest  can  be  secured. 

*  See  act  of  July  22, 1861,  sect.  10. 


284  MILITARY    GOVERNMENT. 

IV.      COURTS    OF    CIVIL   JURISDICTION    UNDER    MILITARY   AUTHORITY. 

In  the  preceding  pages  it  has  been  shown  that  the  right 
of  the  President,  as  Commander-in-Chief  of  the  army,  to 
organize  and  administer  government  in  all  its  branches 
by  military  power,  in  time  of  war,  over  belligerent  dis 
tricts  of  country  recovered  from  a  public  enemy,  and  his 
right  to  subdivide  and  delegate  those  powers  to  different 
persons  acting  under  his  orders,  are  sanctioned  by  the 
Constitution  and  laws  of  Congress,  by  the  decisions  of 
the  Supreme  Court,  and  by  our  practice  in  former  wars. 

The  same  rights  have  been  exercised  during  the  pres 
ent  civil  war.  President  Lincoln  has  appointed  as  Gov 
ernor  of  the  State  of  Louisiana,  Brigadier-General  Geo. 
F.  Shepley;  as  Judge  of  the  Provisional  Court  of  the 
same  State,  Hon.  Charles  A.  Peabody  ;  *  as  Military  Com 
mander  of  the  department  containing  Louisiana,  Maj.- 
Gen.  B.  F.  Butler;  and  General  Butler  has  appointed  to 
act  under  him  a  Sequestration  Committee.'}" 

The  commissions  and  orders  under  which  they  have 
acted  are  as  follows :  — 

COMMISSION    AS    MILITARY    GOVERNOR. 

WAR  DEPARTMENT,  WASHINGTON  CITY,  ) 
June  3,  1802.  ) 

HON.  GEORGE  F.  SHEPLEY,  &c.  &c. 

SIR  :  —  You  are  hereby  appointed  Military  Governor  of  the  State  of  Lou 
isiana,  with  authority  to  exercise  and  perform,  within  the  limits  of  that  State, 
all  and  singular,  the  powers,  duties,  and  functions  pertaining  to  the  office  of 
Military  Governor  (including  the  power  to  establish  all  necessary  offices  and 
tribunals  and  suspend  the  writ  of  habeas  corpus),  during  the  pleasure  of  the 
President,  or  until  the  loyal  inhabitants  of  that  State  shall  organize  a  civil 
government  in  conformity  with  the  Constitution  of  the  United  States. 
By  the  President. 

(SEAL)  E.   M.  STANTON, 

1     OF     ( 

(   u.  s.  )  Secretary  of  War. 

*  Note  to  the  Tenth  Edition.  —  The  Trcsidont  has  recently  appointed  as  a  Judge  of  the 
District  Court  of  the  United  States  for  the  Eastern  District  of  Louisiana,  lion.  Charles 
A.  Duvall,  whose  nomination  has  heen  confirmed  by  the  Senate. 

t  See  The  Grctpeshot,  9  Wallace,  131  ( Appendix,  p.  598). 


MILITARY    GOVERNMENT.  285 


EXECUTIVE     ORDER,    ESTABLISHING     A     PROVISIONAL 
COURT    IN    LOUISIANA. 

EXECUTIVE  MANSION,        ) 
WASHINGTON,  October  20,  1802.  \ 

The  insurrection  which  has  for  some  time  prevailed  in  several  of  the  States 
of  this  Union,  including  Louisiana,  having  temporarily  subverted  and  swept 
away  the  civil  institutions  of  that  State,  including  the  judiciary  and  judicial 
authorities  of  the  Union,  so  that  it  has  become  necessary  to  hold  the  State  in 
military  occupation;  and  it  being  indispensably  necessary  that  there  shall  be 
some  judicial  tribunal  existing  there  capable  of  administering  justice,  I  have, 
therefore,  thought  it  proper  to  appoint,  and  I  do  hereby  constitute  a  Provis 
ional  Court,  which  shall  be  a  Court  of  Record  for  the  State  of  Louisiana,  and 
I  do  hereby  appoint  CHARLES  A.  PEABODY,  of  New  York,  to  be  a  Provis 
ional  Judge  to  hold  said  Court,  with  authority  to  hear,  try,  and  determine  all 
causes,  civil  and  criminal,  including  causes  in  law,  equity,  revenue,  arid  ad 
miralty,  and  particularly  all  such  powers  and  jurisdiction  as  belong  to  the 
District  and  Circuit  Courts  of  the  United  States,  conforming  his  proceedings, 
so  far  as  possible,  to  the  course  of  proceedings  and  practice  which  has  been 
customary  in  the  Courts  of  the  United  States  and  Louisiana  — his  judgment 
to  be  final  and  conclusive.  And  I  do  hereby  authorize  and  empower  the  said 
Judge  to  make  and  establish  such  rules  and  regulations  as  may  be  necessary 
for  the  exercise  of  his  jurisdiction,  and  to  appoint  a  Prosecuting  Attorney, 
Marshal,  and  Clerk  of  the  said  Court,  who  shall  perform  the  functions  of  At 
torney,  Marshal,  and  Clerk,  according  to  such  proceedings  and  practice  as 
before  mentioned,  and  such  rules  and  regulations  as  may  be  made  and  estab 
lished  by  said  Judge.  These  appointments  are  to  continue  during  the  pleas 
ure  of  the  President,  not  extending  beyond  the  military  occupation  of  the  city 
of  New  Orleans,  or  the  restoration  of  the  civil  authority  in  that  city  and  in 
the  State  of  Louisiana.  These  officers  shall  be  paid  out  of  the  contingent 

fund  of  the  War  Department,  compensation  as  follows : 

Such  compensations  to  be  certified  by  the  Secretary  of  War.  A  copy  of  this 
order,  certified  by  the  Secretary  of  War,  and  delivered  to  such  Judge,  shall 
be  deemed  and  held  to  be  a  sufficient  commission.  Let  the  seal  of  the  United 
States  be  hereunto  affixed. 

ABRAHAM  LINCOLN. 
By  the  President : 

WILLIAM  H.  SEWARD,  Secretary  of  State. 


SEQUESTRATION     COMMISSION. 

GENERAL  ORDERS  \  HEAD-QUARTERS,  DEPARTMENT  OF  THE  GULF,  ) 

No.  91.  {  NEW  ORLEANS,  November  9,  1802.         \ 

The  Commanding  General  being  informed,  and  believing,  that  the  district 
west  of  the  Mississippi  River,  lately  taken  possession  of  by  the  United  States 
troops,  is  most  largely  occupied  by  persons  disloyal  to  the  United  States,  and 
whose  property  has  become  liable  to  confiscation  under  the  acts  of  Congress 


286  MILITARY    GOVERNMENT. 

and  the  proclamation  of  the  President,  and  that  sales  and  transfers  of  said 
property  are  being  made  for  the  purpose  of  depriving  the  Government  of  the 
same,  has  determined,  in  order  to  secure  the  rights  of  all  persons  as  well  as 
those  of  the  Government,  and  for  the  purpose  of  enabling  the  crops  now  grow 
ing  to  be  taken  care  of  and  secured,  and  the  unemployed  laborers  to  be  set  at 
work,  and  provision  made  for  the  payment  of  their  labor,  — 
To  order,  as  follows  :  — 

I.  That  all  the  property  within  the  district  to  be  known  as  the  "  District 
of  Lafourche,"  be  and  are  hereby  sequestered,  and  all  sales  or  transfers  thereof 
are  forbidden,  and  will  be  held  invalid. 

II.  The  District  of  Lafourche  will  comprise  all  the  territory  in  the  State 
of  Louisiana  lying  west  of  the  Mississippi  River,  except  the  parishes  of  Pla- 
quemines  and  Jefferson. 

III.  That 

Major  JOSEPH  M.  BELL,  Provost  Judge,  President, 

Lieut.  Col.  J.  B.  KIXSMAX,  A.  D.  C., 

Capt.  FULLER  (75th  N.  Y.  Vols.),  Provost  Marshal  of  the  District, 
be  a  commission  to  take  possession  of  the  property  in  said  district,  to  make 
an  accurate  inventory  of  the  same,  and  gather  up  and  collect  all  such  per 
sonal  property,  and  turn  over  to  the  proper  officers,  under  their  receipts,  such 
of  said  property  as  may  be  required  for  the  use  of  the  United  States  army ; 
to  collect  together  all  the  other  personal  property,  and  bring  the  same  to  New 
Orleans,  and  cause  it  to  be  sold  at  public  auction  to  the  highest  bidders,  and, 
after  deducting  the  necessary  expenses  of  care,  collection,  and  transportation, 
to  hold  the  proceeds  thereof  subject  to  the  just  claims  of  loyal  citizens  and 
those  neutral  foreigners  who  in  good  faith  shall  appear  to  be  the  owners  of 
the  same. 

IV.  Every  loyal  citizen  or  neutral  foreigner  who  shall  be  found  in  actual 
possession  and  ownership  of  any  property  in  said  district,  not  having  acquired 
the  same  by  any  title  since  the  18th  day  of  September  last,  may  have  his 
property  returned  or  delivered  to  him  without  sale,  upon  establishing  his  con 
dition  to  the  judgment  of  the  Commission. 

V.  All  sales  made  by  any  person  not  a  loyal  citizen  or  foreign  neutral, 
since  the  18th  day  of  September,  shall  be  held  void,  and  all  sales  whatever, 
made  with  the  intent  to  deprive  the  Government  of  its  rights  of  confiscation, 
will  be  held  void,  at  what  time  soever  made. 

VI.  The  Commission  is  authorized  to  employ  in  working  the  plantation  of 
any  person  who  has  remained  quietly  at  his  home,  whether  he  be  loyal  or  dis 
loyal,  the  negroes  who  may  be  found  in  said  district,  or  who  have,  or  may 
hereafter,  claim  the  protection  of  the  United  States,  upon  the  terms  set  forth 
in  the  memoranda  of  a  contract  heretofore  offered  to  the  planters  of  the  par 
ishes  of  Plaquemines  and  St.  Bernard,  or  white  labor  may  be  employed  at  the 
election  of  the  Commission. 

VII.  The  Commissioners  will  cause  to  be  purchased  such  supplies  as  may 
be  necessary,  and  convey  them  to  such  convenient  depots  as  to  supply  the 


MILITARY    GOVERNMENT.  287 

planters  in  the  making  of  the  crop ;  which  supplies  will  be  charged  against 
the  crop  manufactured,  and  shall  constitute  a  lien  thereon. 

VIII.  The  Commissioners  are  authorized  to  work,  for  the  account  of  the 
United  States,  such  plantations  as  are  deserted  by  their  owners,  or  are  held  by 
disloyal  owners,  as  may  seem  to  them  expedient,  for  the  purpose  of  saving  the 
crops. 

IX.  Any  persons  who  have  not  been  actually  in  arms  against  the  United 
States  since  the  occupation  of  New  Orleans  by  its  forces,  and  who  shall  re 
main  peaceably  upon  their  plantations,  affording  no  aid  or  comfort  to  the 
enemies  of  the  United  States,  and  who  shall  return  to  their  allegiance,  and 
who  shall,  by  all  reasonable  methods,  aid  the  United  States  when  called  upon, 
may  be  empowered  by  the  Commission  to  work  their  own  plantations,  to  make 
their  own  crop,  and  to  retain  possession  of  their  own  property,  except  such  as 
is  necessary  for  the  military  uses  of  the  United  States.     And  to  all  such  per 
sons  the  Commission  are  authorized  to  furnish  means  of  transportation  for 
their  crops  and  supplies,  at  just  and  equitable  prices. 

X.  The  Commissioners  are  empowered  and  authorized  to  hear,  determine, 
and  definitely  report  upon  all  questions- of  the  loyalty,  disloyalty,  or  neutrality 
of  the  various  claimants  of  property  within  said  district ;  and  further,  to  re 
port  such  persons  as  in  their  judgment  ought  to  be  recommended  by  the  Com 
manding  General  to  the  President  for  amnesty  and  pardon,  so  that  they  may 
have  their  property  returned  ;  to  the  end  that  all  persons  that  are  loyal,  may 
suffer  as  little  injury  as  possible,  and  that  all  persons  who  have  been  heretofore 
disloyal  may  have  opportunity  now  to  prove  their  loyalty  and  return  to  their 
allegiance,  and  save  their  property  from  confiscation,  if  such  shall  be  the  de 
termination  of  the  Government  of  the  United  States. 

By  command  of  MAJOR-GENERAL  BUTLER. 

GEO.  C.  STRONG, 

A.A.G.,  Chief  of  Staff. 

JURISDICTION    OF    COURTS     APPOINTED    BY    MILITARY    AUTHORITY    TO 
ADMINISTER    JUSTICE. 

Military  courts,  being  lawfully  established  by  virtue 
of  the  war  power  of  the  President,  as  a  part  of  his  mili 
tary  government  over  the  territory  of  a  public  enemy, 
with  jurisdiction  over  all  persons  and  things  within  the 
district  to  which  the  judge's  commission  is  limited,  have 
the  right  to  make  and  enforce  rules  for  the  creation  and 
service  of  process,  and  for  all  other  proceedings  before 
them.  Their  judgments  may  be  rendered  subject  to 
appeal,  if  so  directed  by  the  President.  The  orders  and 


288  MILITARY    GOVERNMENT. 

decisions  of  the  judges  will  be  final  and  conclusive  upon 
all  subjects,  matters,  and  persons  over  whom  they  have, 
by  the  terms  of  their  commissions,  exclusive  and  final 
jurisdiction.  From  such  decisions  and  judgments  there 
is  no  appeal  to  any  judicial  court  of  the  United  States.* 
They  must  be  forever  recognized  by  all  departments  of 
government  as  valid  and  conclusive.^ 

DOES  THE  CONSTITUTION  PROHIBIT   SUCH   PROCEDURES  r  J 

The  question  may  be  asked  whether  courts  admin 
istering  municipal  or  local  laws,  condemning  criminals 
without  previous  indictment,  trial  by  jury,  limitation  of 
place  in  which  trial  shall  be  held,  and  without  right  of  ap 
peal,  are  not  within  the  prohibitions  of  the  Constitution. 

The  clauses  referring  to  these  subjects  are  as  follows: — 

Amendment,  Art.  V. 

"  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces  ;  or  in  the  militia,  w hen  in  actual  service 
in  time  of  war  or  public  danger,"  &c. 

Amendment,  Art.  VI. 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have  been  previously 
ascertained  by  law,"  &c. 

Amendment,  Art.  VII. 

"  In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact 
tried  by  a  jury  shall  be  otherwise  recxamined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law." 

*  Dynes  v.  Hoover,  20  How.  79  (See  Appendix,  p.  520)  ;  Vallandigham's  Case,  Ap 
pendix,  p. 524. 

t  See  Notes  to  Forty-third  Edition,  on  "  Military  Government  and  Reconstruction  " 
(p.  427),  and  "  Military  Courts,"  p.  44G. 

J  Note  to  Forty-third  Edition.  —  Since  this  edition  was  in  type,  the  constitutional  power 
of  the  President  to  establish  provisional  courts  in  rebel  States  during-  the  war,  has  been 
affirmed  (1870)  by  a  unanimous  decision  of  the  Supreme  Court  of  the  United  States  in  tho 
case  of  The  Grapeshot  (9  Wallace,  131),  Appendix,  p.  C01. 


MILITARY    GOVERNMENT.  289 

To  understand  the  true  meaning  and  application  of 
the  fifth,  sixth,  and  seventh  articles  of  the  Amendment 
above  cited,  it  is  necessary  to  observe  that  citizens 
owing  allegiance  to  the  government  of  the  United 
States  are  by  civil  territorial  war  divided  into  two 
classes,  having  different  rights  and  being  subject  to  dif 
ferent  liabilities  ;  first,  the  inhabitants  of  loyal  States 
who  have  upheld  the  government;  and  second  the  in 
habitants  of  rebellious  States,  who,  by  inaugurating 
civil  war,  have  become  our  public  enemies.  There  are 
also  two  classes  of  loyal  citizens ;  first,  those  who  are 
in  the  military  or  naval  service  ;  and  second,  those  who 
are  not.  Military  courts  may  be  regarded  as,  first,  or 
dinary  courts,  organized  and  acting  under  provisions  of 
statutes,  and  administering  the  laws  of  war  upon  per 
sons  engaged  in  our  military  service  ;  second,  as  courts 
established  by  the  war  power  of  the  Commander-in- 
Chief,  while  carrying  on  the  domestic  government  of 
territorial  public  enemies  in  hostile  districts  held  by  our 
military  forces.  But,  however  organized  or  established, 
such  courts  exercise  no  part  of  the  judicial  power  of  the 
government  under  the  Constitution.  Hence  it  is  ob 
vious  that  the  Articles  of  Amendment  above  cited  have 
no  application  to  military  courts,  or  to  the  proceedings 
thereof;  but  relate  only  to  the  exercise  of  civil  and 
judicial  power  conferred  on  judicial  courts.*  Art.  5th 
expressly  excepts  from  its  prohibitions  cases  arising  in 
the' land  and  naval  forces,  or  in  the  militia  when  in  ac 
tual  service.  Art.  6th  secures  to  the  accused  a  speedy 
and  impartial  public  trial  in  the  State,  and  district  where 
the  crime  shall  have  been  committed,  but  only  in  case 

*  See  Dynes  v.  Hoover  (Appendix,  p.  520);  Vallandigham's  Case  (Appendix,  p.  524); 
Milligan's  Case  (Appendix,  p.  536);  Comments  on  this  case  (Appendix,  p.  400);  also, 
p.  278,  and  Index,  title  "  Supreme  Court." 

37 


290  MILITARY    GOVERNMENT. 

of  judicial  proceedings  in  ordinary  criminal  courts. 
Art.  7th  is  by  its  own  terms  expressly  limited  to  suits 
at  common  law.  These  regulations  of  procedures  in 
judicial  courts  apply  to  tribunals  of  a  character  totally 
different  from  military  courts.  The  Constitution  sanc 
tions  courts  military  and  courts  judicial,  and  requires 
the  latter  to  be  conducted  according  to  these  Articles 
of  Amendment,  while  it  places  the  former  under  no 
such  restrictions.  The  Supreme  Court,  recognizing  this 
distinction  in  the  case  of  Dynes  v.  Hoover,*  says  that 
"  these  provisions  show  that  Congress  has  the  power  to 
provide  for  the  trial  and  punishment  of  military  and 
naval  offences  in  the  manner  then  and  now  practised 
by  civilized  nations,  and  that  the  power  to  do  so  is  given 
without  any  connection  between  it  and  the  third  article 
of  the  Constitution,  defining  the  judicial  power  of  the 
United  States  ;  indeed,  that  the  two  powers  are  entirely 
independent  of  each  other."  Thus  it  is  evident  that 
whoever  is  subject  to  the  jurisdiction  of  lawful  courts 
of  war,  can  claim  none  of  the*  benefits  of  these  Articles 
of  Amendment.  It  has  been  also  shown  that  citizens 
of  the  United  States  who  have  been  declared  by  our 
Government  public  enemies  of  the  country,  have  no  rights 
guaranteed  to  them  under  any  provisions  of  our  Con 
stitution. 

WHAT   EIGHTS   THE  INSURGENTS  CLAIM. 

To  form  correct  opinions  in  relation  to  the  rights  of 
persons  inhabiting  that  part  of  the  country  now  subjected 
to  the  government  de  facto  of  the  so-called  Confederate 
States,  it  is  proper  to  ascertain  what  rights  they  claim. 
Having  founded  new  governments  within  the  terri- 

*  20  How.  Rep.  79.    (Sec  Appendix,  p.  520.) 


MILITARY   GOVERNMENT.  291 

tory  over  which  our  national  sovereignty  extends,  under 
the  asserted  right  of  revolution ;  having  ratified  those 
governments,  both  confederate  and  state,  by  popular  con 
ventions,  by  legislative  acts  of  secession,  by  submission, 
by  profession  of  allegiance,  and  by  all  other  known 
modes  of  expressing  assent  and  adherence  thereto,  they 
have  publicly  withdrawn  from  and  disclaimed  all  allegi 
ance  to  the  United  States.  They  demand  that  we  diould 
treat  them  as  an  independent  nation.  They  not  only 
assert  no  right  to  protection  under  our  constitution,  but 
wage  open,  barbarous,  offensive  war  against  the  inhabi 
tants  of  the  loyal  States  and  against  our  government. 
They  seek  recognition  from  and  alliance  with  foreign 
countries,  and  if  successful  in  arms,  they  will  be  entitled 
to  compel  the  United  States  to  submit  to  them  as  con 
querors.  Our  territory,  our  government,  and  our  popu 
lation  will  then  be  subjected  to  their  control.  Their 
laws  and  their  institutions  will  then  be  forced  upon  us, 
and  nothing  but  the  overthrow  and  destruction  of  their 
government  can  prevent  this  result. 

They  have  already  been  recognized  by  leading  Euro 
pean  powers  as  BELLIGERENTS.  They  have  demanded  and 
have  received  from  our  government,  the  concession  of 
many  belligerent  rights  ;  as  for  instance,  the  exchange  of 
prisoners  of  war  captured  on  land ;  the  release  of  con 
federate  seamen  condemned  for  piracy ;  and  the  recog 
nition  of  flags  of  truce,  and  the  blockade  of  seaports, 
under  the  law  of  nations. 

The  claim,  so  far  as  it  can  be  ascertained,  of  the 
confederate  de  facto  government,  is  that  the  United 
States  should  concede  to  the  insurgents  full  belligerent 
rights,  and  should  recognize  them  as  an  independent 
nation.  No  demand  of  any  right  under  our  constitu 
tion  or  our  laws  has  ever  been  made  by  them.  Those 


292  MILITARY    GOVERNMENT. 

who  deny  their  obligation  to  perform  the  duties  imposed 
on  all  subjects  of  the  United  States,  have  not  fallen  into 
the  absurdity  of  claiming  the  privileges  of  citizens. 
The  confederates  claim  only  such  rights  as  the  law  of 
war,  which  is  a  part  of  the  law  of  nations,  secures  to 
them.  That  claim  this  government  is  bound  to  concede, 
whenever  it  determines  to  treat  them,  not  as  subjects, 
but  as  belligerents. 

Have  the  insurgents  admitted  liability  on  their  part 
to  regard  our  laws  or  constitution  in  carrying  on  war 
against  us  ?  Have  they  not  forsworn  their  allegiance  to 
this  government,  and  can  they  claim  protection  while 
denying  allegiance  ?  Can  an  enemy  justly  assert  any 
right  under  a  constitution  he  is  fighting  to  destroy  ? 
The  insurgents  cleem  themselves  public  enemies  to  the 
United  States  in  open  war,  and  admit  their  liability  to 
abide  by  the  stern  rules  of  belligerent  law.  They  de 
mand  no  privilege  under  a  constitution  which,  by  com 
mencing  war,  they  have  violated  in  every  clause. 

Is  it  not  remarkable  that  persons  who  profess  to  adhere 
to  our  government  should  set  up  pretensions  on  behalf  of 
our  adversaries  which  our  adversaries  themselves  dis 
claim  ? 

RIGHTS  CONCEDED  TO  INSURGENTS.* 

Whoever  makes  war  against  a  nation  renounces  all 
right  to  its  protection.  The  people  of  the  United 
States  have  founded  a  government  to  secure  the  "  gen 
eral  welfare,"  by  preventing  enemies,  foreign  or  domes 
tic,  from  destroying  the  country.  They  did  not  frame  a 
constitution  so  as  to  paralyze  the  power  of  self-defence. 
They  have  not  forged  weapons  for  their  adversaries,  or 
manacles  for  themselves. 

The  Constitution,  in  fact,  guarantees  no  rights,  but  only 

*  See  Note,  p.  425. 


MILITARY   GOVERNMENT.  293 

declares  the  liabilities,  of  public  enemies,  —  if  they  are 
invaders,  that  they  shall  be  repelled  ;  if  they  are  insur 
gents,  that  they  shall  be  put  down  by  force ;  if  they 
are  rebels,  banded  together  in  territorial  civil  war,  then 
that  civil  war  shall  be  fought  through,  and  conquest  and 
subjugation  shall  reestablish  lawful  government.  Any 
other  result  must  be  a  destruction  of  the  country,  and 
therefore  an  overthrow  of  the  Constitution. 

In  the  enforcement  of  these  hostile  measures  against 
public  enemies,  the  most  liberal  concession  demanded 
by  the  code  of  civilized  warfare,  is  that  traitors  should 
be  deemed  belligerents ;  but,  while  enjoying  the  immu 
nities,  they  must  be  subject  to  the  liabilities,  of  war.* 

Therefore,  whether  the  Articles  of  Amendment  of  the 
Constitution,  previously  cited,  apply  to  martial  proceed 
ings  or  not,  is  immaterial  in  determining  the  rights  of  a 
hostile  people  engaged  in  civil  war  against  the  United 
States. 

The  appeal  to  arms  and  the  laws  of  war  was  forced 
upon  us,  because  the  insurrectionary  districts  refused  to 
submit  to  the  Constitution.  They  cannot,  therefore,  justly 
complain  that  under  the  laws  of  war  they  are  no  longer 
sheltered  by  that  constitution  which  they  hare  spurned. 

ARE    THE   INHABITANTS  OF  INSURRECTIONARY  STATES  PUBLIC  ENEMIES  ? 

Whether  persons  inhabiting  insurrectionary  States  are 
in  law  to  be  deemed  "public  enemies,"  is  apolitical  ques 
tion,  which,  like  similar  questions  arising  under  our  form 
of  government,  is  to  be  determined,  not  by  judicial  courts 
of  law,  but  by  the  legislative  and  executive  departments.-)" 

*  See  the  Prize  Cases,  141,  238;  also,  2  Black's  R.  638. 

t  Some  of  the  consequences  flowing  from  the  status  of  a  public  enemy  are  stated  on 
pp.  236-244. 

See  Notes  to  Forty-third  Edition,  p.  425.  Also,  titles  "  Public  Enemies,"  The  "  Pol 
icy  of  the  Government,"  and  "  A  brief  Statement  of  the  War  Powers,"  p.  390. 


294  MILITARY    GOVERNMENT. 

Among  those  subjects  which,  as  the  Supreme  Court 
of  the  United  States  has  already  decided,  are  finally  to 
be  determined  by  the  political  departments  of  govern 
ment,  are  the  following,  viz. :  (a)  Questions  of  boun 
dary  between  the  United  States  and  foreign  countries.* 

"A  question  like  this,"  says  Chief  Justice  Marshall,  "respecting 
boundary  of  nations,  is,  as  has  been  truly  said,  more  a  political 
than  a  legal  question  ;  and  in  its  discussion  the  courts  of  every 
country  must  respect  the  pronounced  will  of  the  legislature." 
Taney,  G.  J.,  says,  "  The  legislative  and  executive  branches  hav 
ing  decided  the  question,  the  courts  of  the  United  States  were 
bound  to  regard  the  boundary  determined  on  by  them  as  the  true 
one."  f 

(b)  Questions  as  to  the  sovereignty  of  any  foreign 
country  ;  or  as  to  its  independence ;  or  as  to  the  inter 
national  relations  with  our  government  of  foreign  in 
vaders  of  our  country,  or  of  any  nation  whose  provinces 
or  dependencies  are  in  a  state  of  rebellion,  are  also 
political  and  not  judicial. 

"  To  what  sovereignty  any  island  or  country  belongs,"  says  Judge 
McLean,  "  is  a  question  which  often  arises  before  courts. 
And  can  there  be  a  doubt  that  when  the  executive  branch  of  the 
government,  which  is  charged  with  our  foreign  relations,  shall,  in 
its  correspondence  with  a  foreign  nation,  assume  a  fact  in  regard 
to  the  sovereignty  of  any  island  or  country,  it  is  conclusive  on  the 
judicial  department?  And  in  this  view  it  is  not  material  to  in 
quire  whether  the  Executive  is  right  or  wrong.  It  is  enough  to 
know  that,  in  the  exercise  of  his  constitutional  functions,  he  has 
decided  the  question.  Having  done  this,  under  the  responsibili 
ties  which  belong  to  him,  it  is  obligatory  on  the  people  and  gov 
ernment  of  the  United  States.  *  *  *  In  the  cases  of  Foster 
v.  Nelson  and  Garcia  v.  Lee^  this  court  have  laid  down  the  rule 

*  Foster  $  Elam  v.  Nelson,  2  Pet.  307. 

t  United  States  v.  Percheman,  7  Pet.  51.  United  States  v.  Arredondo  (1832),  G  Pet.  711. 
Garcia  v.  Lee,  12  Pet.  516,  517,  520,  522. 

Note  to  Forty-third  Edition.  —  With  regard  to  the  jurisdiction  of  courts  there  is  a  dis 
tinction  between  questions  of  boundary  which  involve  rights  of  sovereignty  and  of 
political  jurisdiction,  or  political  rights  over  the  territory  in  question,  and  those  which 
involve  mere  rights  of  property.  See  Georgia  v.  Stanton,  Appendix,  p.  548. 


MILITARY    GOVERNMENT.  295 

that  the  action  of  the  political  branches  of  the  government,  in  a 
matter  that  belongs  to  them,  is  conclusive."  * 

(c)  Questions  relating  to  the  admission  of  States  into 
the  Union,  or  to  the  recognition  of  local  governments  as 
the  governments  of  States  in  the  Union,  belong  to  the 
political,  not  to  the  judicial  power  to  decide ;   as,  for 
example,   whether   the   government   of  Ehode    Island 
should  be  recognized  by  the  United  States  as  the  duly 
constituted   government  of  that  State.     Therefore  the 
Supreme  Court  declared  that  it  had  not  the  power  to 
try  or   determine    this   question,  so  far  as  the   United 
States  was  concerned.     Congress  delegated  to  the  Presi 
dent,  by  the  Statute  of  Feb.  28, 1795,  the  power  to  decide 
for  the  purposes  of  that  act,  whether  a  government  or 
ganized  in  a  State  was  the  duly  constituted  government 
of  that  State,  and,  after  he  made  his  decision,  the  courts 
of  the  United  States  were  bound  to  conform  to  it/j- 

(d)  Questions  as  to  the  legal  status  of  all  persons  who 
shall  have  engaged    in  insurrection,  rebellion,  or  civil 
war  against  the  United  States,  are    also  of  a  political 
character,   determinable    only    by    the    executive    and 
legislative  branches  of  our  government.  J 

It  will,  therefore,  be  the  duty  of  the  President  and 

*  Williams  v.  Suffolk  Ins.  Co.,  13  Peters,  S.  C.  R.  420  (McLean,  J.). 

See  also  Gelston  v.  Hoyt,  3  Wheaton,  240  ;  United  States  v.  Palmer,  3  Wheaton,  610. 

t  Luther  v.  Jlorden,  7  Howard,  S.  C.  R.  40,  42-44. 

J  Luther  v.  .Borden,  7  Howard,  40,  44;  Lawrence's  Wheaton,  514;  Martin  v.  Mott, 
12  Wheaton,  29,  30;  Law  Reporter,  July,  1861,  148;  The  Tropic  Wind,  Opinion  of  Judge 
Dunlop;  the  prize  case  Hiawatha  and  others,  2  Black.  638;  War  Powers,  pp.  141,  215. 
See  also  charge  of  Nelson,  J.,  on  the  trial  of  the  officers,  &c.,  of  the  Savannah,  p.  371. 
In  this  case  the  rebel  privateer  put  in  as  a  defence  his  commission  to  cruise  under  the 
confederate  flag;  and  the  same  defence  was  made  in  Philadelphia,  by  other  persons  in 
dicted  for  piracy.  In  both  cases  it  was  held  that  the  courts  must  follow  the  decision  of 
the  executive  and  legislative  departments  in  determining  the  political  status  of  the  Con 
federate  States.  See  also  Smith's  Trial,  p.  96;  Santissima  Irinidad,  7  Wheaton,  283,  305. 
Upton's  Maritime  Warfare  and  Prize,  second  edition,  pp.  44-107. 

Note  to  Forty-third  Edition.  — Sec  also  Halleck's  Law  of  Nations,  720,  and  author 
ities  there  cited;  Lawrence's  Wheaton,  p.  43,  note  ;  Neueva  Anna  Liebre,  6  Wheaton,  R. 
193;  also,  Index,  "  Policy  of  the  Government; '?  and  cases  recently  decided  by  the  Su 
preme  Court.  Appendix,  pp.  512-610. 


296  MILITARY    GOVERNMENT. 

of  Congress  to  decide  all  questions  of  public  policy 
which  may  grow  out  of  the  rebellion.  Of  these,  the 
most  important  are,  1.  Whether  the  Confederates  shall 
have  the  legal  status  of  mere  insurgents,  or  that  of  bel 
ligerent  public  enemies.  2.  Whether  local  governments 
formed,  or  to  be  formed,  within  the  territory  in  re 
bellion,  shall  be  sanctioned  by  the  United  States. 
3.  Whether,  when,  and  on  what  conditions,  a  state  of 
peace  shall  be  established  or  declared.  4.  Whether  the 
Confederate  States  shall  be  recognized  by  receiving 
their  commissioners,  by  acknowledging  their  indepen 
dence,  or  by  any  other  act  of  our  government.  Such 
decisions  on  these  and  on  similar  matters  are  binding 
and  conclusive  upon  the  Federal  courts. 

STATUS   OF  THE  INSURGENTS  AS  DETERMINED  BY  THE   PRESIDENT. 

The  acts  and  proclamations  of  the  Executive  Depart 
ment  have  stamped  as  "  public  enemies "  all  persons 
residing  in  the  insurrectionary  States.  The  President 
issued  a  proclamation  on  the  15th  April,  1861,  which 
declares  that  the  laws  had  been  opposed  and  their 
execution  obstructed,  for  some  time  past,  in  certain 
States,  by  combinations  too  powerful  to  be  suppressed 
by  the  ordinary  course  of  judicial  proceedings.  He 
called  out  757000  of  the  State  militia  in  order  to 
suppress  said  combinations.  On  the  19th  of  April, 
1861,  he  proclaimed  a  blockade  of  the  ports  within 
certain  States,  in  pursuance  of  the  laivs  of  nations  and 
the  statutes  of  the  United  States  in  such  case  pro 
vided,  and  gave  warning  that  vessels  breaking  or  at 
tempting  to  break  that  blockade  should  be  captured 
and  condemned  as  lawful  prize.  He  also  declared  that  any 
persons  who,  under  pretended  authority  of  said  States, 
should  molest  any  United  States  vessel,  should  be 


MILITARY   GOVERNMENT.  297 

deemed  pirates.  This  blockade  was,  by  a  subsequent 
proclamation  of  April  27,  1861,  extended  to  other 
States. 

By  the  proclamation  of  May  10,  1861,  he  suspend 
ed  the  privilege  of  the  writ  of  habeas  corpus  in  the 
islands  on  the  coast  of  Florida. 

On  the  16th  of  August,  1861,  in  pursuance  of  an 
Act  of  Congress,  he  declared  "  that  the  inhabitants  of 
the  States  of  Georgia,  South  Carolina,  Virginia,  North 
Carolina,  Tennessee,  Alabama,  Louisiana,  Texas,  Arkan 
sas,  Mississippi,  and  Florida  (excepting  the  inhabitants 
of  Western  Virginia,  etc.),  are  in  a  state  of  insurrection 
against  the  United  States,  and  that  all  commercial  intercourse 
betiueen  the  name  and  the  inhabitants  thereof,  with  the  excep 
tions  aforesaid,  and  the  citizens  of  other  States,  and  other  parts 
of  the  United  States,  is  unlaivfid,  and  ivill  remain  unlawful  until 
such  insurrection  shall  cease,  or  has  been  suppressed"  He  then 
declined  forfeiture  of  goods,  or  conveyances  thereof,  going 
to  said  States,  and,  after  fifteen  days,  of  all  vessels  belonging 
in  ivhole  or  in  part  to  any  inhabitant  of  any  of  said  States 
(except  as  aforesaid),  wherever  found. 

On  the  1st  of  July,  1862,  he  again  declared  the  same 
States  in  insurrection  and  rebellion,  so  that  the  taxes  could 
not  be  collected  therein,  in  pursuance  of  the  Act  of 
1861,  Chapter  45. 

On  the  25th  of  the  same  month,  he  gave  a  further 
warning  under  the  provisions  of  the  sixth  section  of 
the  Act  of  July  17,  1862,  requiring  rebels  to  "return  to 
their  proper  allegiance  to  the  United  States,  on  pain  of  for 
feitures  and  seizures,"  as  provided  for  in  said  Act. 

The    proclamation    of  Sept,  22,  1862,  was  made  by 

the  President  as  an  Executive  officer  and  as  Commander- 

in-Chief  of  the  Army  and  Navy,  « that  the  war  will  be 

prosecuted  hereafter  as  heretofore  for  the  purpose,"  etc,; 

38 


298  MILITARY  GOVERNMENT. 

that  slaves  in  States  which  should  be  in  rebellion  on  the 
first  day  of  the  following  January  should  be  free,  and 
that  he  would,  by  subsequent  proclamation,  designate 
such  States;  and  at  that  date  (January  1,  1863),  the 
President  did  designate  such  States,  and  did  declare 
u  that  all  persons  held  as  slaves  within  said  States,  etc.,  are 
and  hereafter  shall  be  free,"  and  "  that  the  executive 
government  of  the  United  States,  including  the  military 
and  naval  authorities  thereof,  will  recognize  and  main 
tain  the  freedom  of  said  persons.'"' 

From  an  examination  of  these  proclamations  issued 
by  President  Lincoln,  by  virtue  of  his  executive  power 
and  as  a  military  chief,  it  cannot  be  doubted  that  in  the 
most  solemn  and  formal  manner  he  has  recognized  the 
inhabitants  of  the  insurrectionary  States  as  in  civil  ivar, 
and  therefore  as  public  enemies.  His  proclamation  char 
acterizes  these  hostilities  as  "  the  war  now  prosecuted ;" 
he  requires  the  rebels  to  "return  to  their  proper  alle 
giance  to  the  United  States,"  admitting  that  they  have 
renounced  such  allegiance ;  in  all  his  proclamations,  ex 
cepting  the  first,  he  treats  the  inhabitants  of  the  rebellious 
States  as  in  simili  statu  (with  specified  exceptions  only), 
and  in  the  proclamation  of  Jan.  1,  1863,  no  exceptions 
are  made  of  any  class  of  persons  within  the  designated 
districts. 

The  Executive  Department  has  thus  definitely  settled 
the  question  that  all  inhabitants  of  the  designated  States 
are  public  enemies,  —  First,  by  proclamations  depriving 
them  of  slaves,  of  ships,  and  of  property  used  in  com 
merce  ;  by  a  blockade  and  a  declaration  of  non-inter 
course  ;  by  claiming  against  them  the  rights  of  tvar ; 
and  by  asserting  that  the  existing  hostilities  are  "  WAR." 
Second,  by  extending  to  the  insurgents  the  usual  rights 

*  See  the  President's  Proclamation,  April  2,  1863. 


MILITARY  GOVERNMENT.  299 

and  privileges  of  a  belligerent  public  enemy ;  as  by  re 
lease  of  captured  pirates  (under  the  order  of  the  Presi 
dent  issued  from  the  State  Department)  as  prisoners  of 
war,*  by  exchange,  by  cartel,  of  prisoners  of  war  captured 
on  land,  by  claiming  the  right  of  retaliation,  and  by  va 
rious  other  acts,  which  are  legitimate  in  the  conduct  of 
the  war,  but  irreconcilable  with  the  assumption  that  the 
United  States  are  not  engaged  in  war,  but  only  in  enfor 
cing  the  laws  against  certain  criminals  who  have  violated 
certain  statutes  by  engaging  in  insurrection  or  rebellion.*}* 
If  these  acts  and  these  proclamations  do  not  show  that 
the  Executive  Department  has  declared  and  determined  the 
status  of  the  inhabitants  in  insurrection  to  be  that  of  public 
enemies,  it  would  be  difficult  to  conceive  of  any  course  of 
executive  proceedings  that  would  have  had  that  effect.J 

STATUS  OF  THE  INSURGENTS  AS  DETERMINED  BY  CONGRESS. 

The  action  of  the  Legislative  Department,  which  has 
been  in  harmony  with  that  of  the  President,  has  in  like 
manner  definitively  pronounced  the  inhabitants  of  insur 
rectionary  States  to  be  public  enemies.  In  the  war  of 
1812,  between  the  United  States  and  Great  Britain,  the 
Act  of  July  6,  1812,  and  the  Act  of  February  4,  1815, 
indicated  the  character  and  extent  of  legislation  neces 
sary  to  record  the  decision  of  the  Legislative  Department, 
that  Great  Britain  was  at  that  time  a  public  enemy. 

But  since  the  present  rebellion  commenced,  Congress 
has  enacted  laws  far  more  stringent  and  comprehensive 
than  either  of  those  above  cited,  against  the  inhabitants 
of  the  rebellious  States.  The  four  chief  acts  which  re- 

*  See  page  215. 

t  Note  to  Forty-third  Edition.  —  To  these  acts  may  now  be  added  the  surrender  of  the 
armies  of  Generals  Lee  and  Johnston,  upon  terms  which  arc  deemed  obligatory  upon  the 
United  States. 

J  The  effect  of  the  President's  Message  and  Proclamation  of  Amnesty  of  December  8, 
1803,  upon  the  persons,  property,  and  political  rights  of  the  inhabitants  of  rebellious 
States,  far  transcends  in  importance  that  of  either  of  his  previous  executive  acts. 


300 


MILITARY   GOVERNMENT. 


cord  the  decision  of  Congress  on  the  question  whether 
rebels  are  public  or  private  enemies,  are,  — 

1.  The  Act  of  July  13,  1861,  ch.  3. 

2.  "      "    "    May  20,  1862,  ch.  81. 

3.  "      "    »    July  17,  1862,  ch.  195. 

3.     "       "    "    March  12,  1863,  ch.  120.* 

In  the  extraordinary  but  brief  session  of  the  37th 
Congress,  which  assembled  on  the  4th  of  July,  1861,  and 
lasted  but  thirty-three  days,  statutes  of  the  highest  im 
portance  were  passed,  and  among  them  none  will  here 
after  attract  more  attention  than  the  Act  of  July  13, 
1861,  ch.  3.  Means  were  thereby  provided  for  collecting 
the  revenue  in  rebellious  districts  by  the  use  of  military 
and  naval  forces,  the  President  was  authorized  to  close 
ports  of  entry,  and  it  was  enacted,  in  the  fifth  section, — 

"  That  whenever  the  President,  in  pursuance  of  the  provisions  of  the  second 
section  of  the  act  entitled  '  An  act  to  provide  for  the  calling  forth  the  militia 
to  execute  the  laws  of  the  Union,  suppress  insurrections,  and  repel  invasions, 
and  to  repeal  the  act  now  in  force  for  that  purpose,'  approved  February  28, 
1795,  shall  have  called  forth  the  militia  to  suppress  combinations  against  the 
laws  of  the  United  States,  and  to  cause  the  laws  to  be  duly  executed,  and  the 
insurgents  shall  have  failed  to  disperse  by  the  time  directed  by  the  President, 
and  when  said  insurgents  claim  to  act  under  the  authority  of  any  State  or 
States,  and  such  claim  is  not  disclaimed  or  repudiated  by  the  persons  exer 
cising  the  functions  of  government  in  such  State  or  States,  or  in  the  part  or 
parts  thereof  in  which  said  combination  exists,  nor  such  insurrection  sup 
pressed  by  said  State  or  States,  then  in  such  case  it  may  and  shall  be  lawful 
for  the  President,  by  proclamation,  to  declare  that  the  inhabitants  of  such  State, 
or  any  section  or  part  thereof  where  such  insurrection  exists,  are  in  a  state  of 
insurrection  against  the  United  States ;  and  thereupon  all  commercial  inter 
course  by  and  between  the  same  and  the  citizens  thereof,  and  the  citizens  of 
the  rest  of  the  United  States,  shall  cease  and  be  unlawful  so  long  as  such 
condition  of  hostility  shall  continue ;  and  all  goods  and  chattels,  wares  and 
merchandise  coming  from  said  State  or  section  into  the  other  parts  of  the 
United  States,  and  all  proceeding  to  such  State  or  section,  by  land  or  water, 
shall,  together  with  the  vessel  or  vehicle  conveying  the  same,  or  conveying 
persons  to  or  from  such  State  or  section,  be  forfeited  to  the  United  States." 

*  Note  to  Forty-third  Edition.  —  Several  subsequent  acts  may  now  be  added  to  the 
above.  See  act  of  July  2,  1804,  which  extends  the  prohibitions  of  the  act  of  1861  to  all 
the  inhabitants  of  the  designated  States.  See  also  the  Appropriation  Act,  1865  (Chap.  81). 
Also,  the  Reconstruction  Acts,  cited  in  the  Notes. 


MILITARY   GOVERNMENT.  301 

Also,  in  the  sixth  section,  it  was  enacted,  — 

"  That  from  and  after  fifteen  days  after  the  issuing  of  the  said  proclamation, 
as  provided  in  the  last  foregoing  section  of  this  act,  any  ship  or  vessel  belong' 
Jrg  in  whole  or  in  part  to  any  citizen  or  inhabitant  of  said  State  or  part  of  a 
State  whose  inhabitants  are  so  declared  in  a  state  of  insurrection,  found  at 
sea,  or  in  any  port  of  the  rest  of  the  United  States,  shall  be  forfeited  to  the 
United  States." 

By  the  Act  of  May  20,  1862,  ch.  81,  farther  pro 
visions  were  made  interdicting  commerce  between  loyal 
and  disloyal  States,  and  new  forfeitures  and  penalties 
were  prescribed. 

By  the  Act  of  July  17.  1862,  ch.  195,  a  new  punish 
ment  for  the  crime  of  treason  was  declared,  penalties 
were  prescribed  against  all  persons  who  should  engage 
in,  or  give  aid  or  comfort  to  the  rebellion  or  insurrec 
tion,  and  they  were  declared  to  be  disqualified  from 
holding  office  under  the  United  States.  By  Section  fifth 
it  was  enacted,  — 

"  That,  to  insure  the  speedy  termination  of  the  present  rebellion,  it  shall  be 
the  duty  of  the  President  of  the  United  States  to  cause  the  seizure  of  all  the 
estates  and  property,  money,  stocks,  credits,  and  effects  of  the  persons  herein 
after  named  in  this  section,  and  to  apply  and  use  the  same  and  the  proceeds 
thereof  for  the  support  of  the  army  of  the  United  States ;  that  is  to  say,  — 

"  First.  Of  any  person  hereafter  acting  as  an  officer  of  the  army  or  navy 
of  the  rebels  in  arms  against  the  government  of  the  United  States. 

"  Secondly.  Of  any  person  hereafter  acting  as  president,  vice-president, 
member  of  Congress,  judge  of  any  court,  cabinet  officer,  foreign  minister, 
commissioner,  or  consul  of  the  so-called  confederate  states  of  America. 

"  Thirdly.  Of  any  person  acting  as  governor  of  a  State,  member  of  a  con 
vention  or  legislature,  or  judge  of  any  court  of  the  so-called  confederate  states 
of  America. 

"  Fourthly.  Of  any  person  who,  having  held  an  office  of  honor,  trust,  or 
profit  in  the  United  States,  shall  hereafter  hold  an  office  in  the  so-called  con 
federate  states  of  America. 

"  Fifthly.  Of  any  person  hereafter  holding  any  office  or  agency  under  the 
government  of  the  so-called  confederate  states  of  America,  or  under  any  of 
the  several  states  of  the  said  confederacy,  or  the  laws  thereof,  whether  such 
office  or  agency  be  national,  state,  or  municipal  in  its  name  or  character. 
Provided,  That  the  persons,  thirdly,  fourthly,  and  fifthly  above  described, 


302  MILITARY    GOVERNMENT. 

shall  have  accepted  their  appointment  or  election  since  the  date  of  the  pre 
tended  ordinance  of  secession  of  the  State,  or  shall  have  taken  an  oath  of 
allegiance  to,  or  to  support  the  constitution  of  the  so-called  confederate 
states. 

"  Sixthly.  Of  any  person  who,  owning  property  in  any  loyal  State  or  Ter 
ritory  of  the  United  States,  or  in  the  District  of  Columbia,  shall  hereafter 
assist  and  give  aid  and  comfort  to  such  rebellion ;  and  all  sales,  transfers,  or 
conveyances  of  any  such  property  shall  be  null  and  void ;  and  it  shall  be  a 
Sufficient  bar  to  any  suit  brought  by  such  person  for  the  possession  or  the  use 
of  such  property,  or  any  of  it,  to  allege  and  prove  that  he  is  one  of  the  per 
sons  described  in  this  section." 

Section  sixth  provided  that  if  any  persons  other  than 
those  above  named,  had  engaged  in,  or  aided  the  armed 
rebellion,  and  should  not  within  a  limited  time  return  to 
their  allegiance,  their  property  should  be  liable  to  seizure 
and  condemnation. 

Section  seventh  provided  proceedings  for  confiscation 
of  such  property,  real  and  personal,  — 

"  And  if  said  property,  whether  real  or  personal,  shall  be  found  to  have 
belonged  to  a  person  engaged  in  rebellion,  or  who  has  given  aid  or  comfort 
thereto,  the  same  shall  be  condemned  as  enemies'  property^  and  become  the 
property  of  the  United  States." 

"  Slaves  escaping,  and  taking  refuge  within  the  lines  of  the  army,  and  all 
slaves  captured  from,  or  deserted  by,  those  engaged  in  rebellion,  and  coming 
under  control  of  the  government  of  the  United  States,  and  all  slaves  of  such 
persons  found  or  being  within  any  place  occupied  by  rebel  forces,  and  after 
wards  occupied  by  forces  of  the  United  States,  shall  be  deemed  captives  of 
war,"  etc. 

The  Act  approved  March  12,  1863,  ch.  120,  §  1,  pro 
vides  that  agents  may  be  appointed  by  the  Secretary  of 
the  Treasury  to  collect  all  abandoned  and  captured 
property  in  any  State  or  Territory  designated  as  in 
insurrection  by  the  proclamation  of  July  1,  1862,— 

"Provided,  that  such  property  shall  not  include  any  kind  or  description 
which  has  been  used,  or  which  was  intended  to  be  used,  for  waging  or  carry 
ing  on  war  against  the  United  States,  such  as  arms,  ordinance,  ships,  steam 
boats,  or  other  water  craft,  and  the  furniture,  forage,  or  other  military  supplies 
or  munitions  of  war." 


MILITARY   GOVERNMENT.  303 

Section  fourth  of  the  same  statute,  provides,  — 

"  That  all  property  coming  into  any  of  the  United  States  not  declared  in 
insurrection  as  aforesaid,  from  within  any  of  the  states  declared  in  insurrec 
tion,  through  or  by  any  other  person  than  any  agent,  duly  appointed  under 
the  provisions  of  this  act,  or  under  a  lawful  clearance  by  the  proper  officer 
of  the  Treasury  Department,  shall  be  confiscated  to  the  use  of  the  govern 
ment  of  the  United  States.  And  the  proceedings  for  the  condemnation 
and  sale  of  any  such  property  shall  be  instituted  and  conducted  under  the 
direction  of  the  Secretary  of  the  Treasury,  in  the  mode  prescribed  by  the 
eighty-ninth  and  ninetieth  sections  of  the  act  of  March  2,  1799,  entitled, 
'  An  act  to  regulate  the  collection  of  duties  on  imports  and  tonnage.'  And 
any  agent  or  agents,  person  or  persons,  by  or  through  whom  such  property 
shall  come  within  the  lines  of  the  United  States  unlawfully,  as  aforesaid,  shall 
be  judged  guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be  fined 
in  any  sum  not  exceeding  one  thousand  dollars,  or  imprisoned  for  any  time 
not  exceeding  one  year,  or  both,  at  the  discretion  of  the  court.  And  the 
fines,  penalties,  and  forfeitures  accruing  under  this  act,  may  be  mitigated  or 
remitted  in  the  mode  prescribed  by  the  act  of  March  3,  1797,  or  in  such 
manner,  in  special  cases,  as  the  Secretary  of  the  Treasury  may  prescribe." 

From  these  statutes  it  is  seen  that  the  Legislative  De 
partment  has  recognized  "certain  districts  of  country, 
not  only  as  in  a  state  of  insurrection  and  rebellion,"  but 
as  "  carrying  on  a  war  "  against  the  United  States.  Com 
mercial  intercourse  has  been  interdicted  between  the 
insurrectionary  and  the  loyal  States,  and  property  found 
in  transitu  is  made  liable  to  seizure  and  confiscation,  for 
the  use  of  the  United  States,  and  property  of  persons 
engaged  in  the  rebellion  is  to  be  seized  and  confiscated 
as  ENEMIES'  property.  The  inhabitants  (that  is  to  say  ALL 
the  inhabitants)  of  the  insurrectionary  States,  or  parts  of  Slates, 
are  declared  to  be  in  a  state  of  insurrection  against  the  United 
States,  and  any  ship  or  vessel,  belonging  in  ivhole  or  in  part  to 
any  citizen  or  inhabitant  of  such  State,  luhose  inhabitants  are  so 
declared  in  insurrection,  found  at  sea,  or  in  any  of  the  loyal  or 
disloyal  States,  shall  be  forfeited  to  the  United  States* 

*  Note  to  Forty-third  Edition.  — See  joint  resolution  approved  Feb.  8,  1805.  See  Notes 
in  Appendix  on  the  "  Reconstruction  Acts,"  "  Military  Government,"  and  Index  —  title 
"  Public  Enemies."' 


304  MILITARY    GOVERNMENT. 

Thus  belligerent  rights  derived  from  the  acknowl 
edged  existence  of  civil  territorial  war,  have  been 
plainly  asserted  and  exercised  by  Congress,  and  the 
insurgents  have  been  declared  public  enemies  in  every 
form  and  manner  known  to  legislation,  and  in  lan 
guage  far  more  stringent  than  that  used  by  the  Par 
liament  of  Great  Britain,  when,  by  the  Non-intercourse 
Act,  our  revolutionary  rebellion  was  changed  into  pub 
lic  territorial  war.* 

THE  ACTION  OF  THE    SUPREME    COURT    IN    RELATION   TO   POLITICAL 

QUESTIONS. 

Has  the  Supreme  Court  thus  far  followed  the  decis 
ions  of  the  political  departments  of  government  on  the 
question  as  to  the  status  of  rebels  as  public  enemies, 
that  is  to  say,  as  enemies  within  the  sense  of  interna 
tional  law  ?  This  question  will  be  answered  by  refer 
ence  to  the  cases  which  have  arisen  since  the  begin 
ning  of  the  war.  By  far  the  most  important  decisions 
on  this  subject  were  made  in  March,  1863,  and  are  com 
monly  known  as  "  The  Prize  Cases."  f  In  these  opin 
ions  the  judges  plainly  recognize  the  insurgents  as 
public  enemies,  following,  in  that  respect,  as  was  their 
duty,  the  decision  of  the  Political  Department  of  the 
government.  How  could  a  judgment,  condemning  these 
vessels  as  lawful  prize,  be  sustained  if  the  belligerents 
were  not  admitted  to  be  public  enemies?  Though  a  vessel, 
captured  while  trading  with  an  enemy,  may  be  lawful 
prize,  irrespective  of  the  character,  whether  friendly,  neu 
tral,  or  hostile,  of  the  trader  to  whom  it  belongs,  yet  it  is 
because  his  vessel,  if  released,  may  aid  a  public  enemy,  that 
it  becomes  liable  to  capture.  No  property  of  a  friendly 
or  neutral  power  can  be  lawfully  captured  because  it 

*  See  Act  16  Geo.  .3,  1776,  also  the  dissenting  opinion  in  the  Prize  cases, 
t  For  the  opinion  of  the  Court  in  the  Prize  cases,  and  that  of  the  dissenting  judges,  see 
pp.  140-156.     For  analysis  of  these  opinions,  see  pp.  238-243. 


MILITARY   GOVERNMENT.  305 

might  aid  a  criminal,  a  robber,  a  pirate,  or  an  insur 
gent,  while  acting  merely  as  a  private  or  personal 
enemy  of  the  United  States.  The  law  of  prize  has  no 
application  to  the  case  of  personal  or  private  enemies, 
and  cannot  be  invoked  to  justify  a  capture  of  private 
property,  unless  there  exists  a  public  enemy  and  a  state  of 


Blockades,  under  the  law  of  nations,  can  lawfully 
exist  only  when  there  is  a  public  enemy  to  the  country 
which  proclaims  and  enforces  them. 

The  Circuit  Courts  of  the  United  States,  having  ad 
judged  the  inhabitants  of  States  declared  in  rebellion  to 
be  public  enemies,  have  thus  conceded  that  they  are 
not  entitled  to  sue  in  any  of  the  national  courts.* 

Doubtless  the  disability  to  sue  in  courts  of  the  United 
States,  and  all  other  disabilities  resulting  from  the  status 
of  a  public  enemy,  may  be  removed.  But  it  is  for  the 
President  and  Congress  to  determine  what  sound  policy 
and  public  safety  shall  require. 

It  is  a  matter  of  congratulation  that  there  is  no  want 
of  harmony  between  the  different  departments  of  Gov 
ernment,  and  that  the  Supreme  Court  has  not  gone 
beyond  its  legitimate  functions  in  time  of  civil  war ;  but 
has,  by  following  the  decisions  of  the  political  depart 
ments  on  political  questions,  given  the  best  evidence 
that,  even  in  revolution,  it  will  not  be  necessary  for  the 
safety  of  the  country  to  overthrow  its  judiciary. 

Thus  it  has  been  shown  that  the  question  whether 
the  inhabitants  of  the  States  in  insurrection  are  "public 
enemies"  and  entitled  to  the  rights,  or  subject  to  the 
liabilities  of  belligerent  law,  is  to  be  decided,  not  by  the 

*  See  Bouneau  v.  Dinsmore,  24  Law  Hep.  381.  S.  C.  19  Leg.  Inst.  108.  Israel  G.  Nash 
(of  North  Carolina)  Complt.  v.  Lyman  Dayton  et  al.  (decided  by  Nelson,  Judge  of  the 
United  States  Circuit  Court  of  Minnesota).  See  U.  S.  v.  The  Isaac  Hemmett,  Legal 
Jour.  97;  also,  U.  S.  v.  The  Allegheny,  ib.  276,  and  Mrs.  Alexander's  Cotton,  app..  534. 

39 


306  MILITARY    GOVERNMENT. 

judicial,  but  by  the  political  departments  of  this  Gov 
ernment :  that  the  Executive  and  Legislative  Depart 
ments  have  formally  and  finally  decided  that  the  rebels 
are  public  enemies,  and  subject  to  the  laws  of  war  :  that 
the  Judicial  Department  has  submitted  to  and  followed 
that  decision ;  and  that  the  question  as  to  the  political 
status  of  rebellion  is  now  no  longer  open  for  discussion  : 
that  whatever  rights,  other  than  the  rights  of  war,  may 
be  conceded  to  the  inhabitants  of  rebellious  territory, 
will  be  bestowed  on  them  from  considerations  of  policy 
and  humanity,  and  not  from  admission  of  their  claims 
to  rights  under  our  Constitution.* 

*  Messrs.  Fishback  and  Baxter  claimed  recognition  as  United  States  senators  from  the 
State  of  Arkansas,  a  State  declared  by  proclamation  of  the  President  to  be  in  rebellion. 
Since  the  first  publication  of  this  essay,  the  Senate,  on  the  29th  of  June,  1864,  resolved 
that  they  were  not  entitled  to  seats  therein,  —  yeas,  8;  nays,  25. 

Note  to  Forty-third  Edition.  —  Similar  resolves  have  since  been  passed  in  relation  to 
several  other  persons  who  have  claimed  to  be  senators  or  representatives  from  seceded 
States.  The  principles  hero  stated  have  been  sanctioned  by  several  laws  of  Congress, 
by  acts  of  the  Executive  Department,  and  by  decisions  of  the  Supreme  Court.  See 
Notes  on  Reconstruction,  and  the  collection  of  decided  cases  in  the  Appendix. 


CHAPTER    V. 

DELEGATION    OF   AUTHORITY. 

Judicial  authority  cannot  be  delegated,  and  as  the 
commander  of  a  department,  or  other  officer  who  pre 
sides  over  a  military  tribunal  while  determining  a  case 
of  civil  jurisdiction,  acts  in  a  quasi  judicial  capacity,  a 
question  has  been  made  whether  the  right  to  hold  such 
courts  can  be  delegated  by  the  President  to  his  officers. 
Although  such  proceedings  of  the  war  courts  as  com 
plaints  of  parties,  pleadings,  examination  of  witnesses, 
deliberations  and  decisions  of  judges,  in  many  respects 
resemble  those  of  judicial  courts,  yet,  as  they  are  not 
deemed  judicial  within  the  true  meaning  of  the  Consti 
tution,  no  valid  objection  arises  from  that  source,  to  the 
delegation  of  the  power  to  hold  military  courts,  to  such 
officers  as  may  be  appointed  by  the  President. 

This,  and  nearly  all  the  war  powers,  must  be  exercised 
through  officers  acting  under  the  Commander-in-Chief ; 
for  his  authority  must  be  exerted  at  the  same  time  in 
different  and  distant  places ;  and  as  he  cannot  be  omni 
present,  that  authority  which  could  not  be  delegated 
would  become  comparatively  useless.  The  practice  of 
the  Government  has,  from  the  beginning,  been  in 
accordance  with  this  view  of  constitutional  law. 

The  power  of  the  President  is  in  part  delegated  to  his 
Secretary  of  War,  whose  acts  are  deemed  in  law  to  be 
the  acts  of  the  President.*  The  commanders  of  military 

*  Wilcox  v.  Jackson,  13  Pet.  R.  408. 
Opinion  of  Wm.  Wirt,  Atty  Genl.  (July  6, 1820). 
U.  S.  v.  Eliason,  1(5  Pet.  S.  C.  R.  291. 

307 


308  MILITARY    GOVERNMENT. 

departments  are  clothed  with  authority  transferred  to 
them  by  the  Commander-in-Chief.  Therefore,  if  that 
authority  is  not  limited  so  as  to  prevent  it,  they  have 
the  right,  while  in  the  enemy's  country  in  time  of  war, 
to  organize  military  courts  martial  and  commissions,  and 
to  administer  all  other  belligerent  laws.  Tribunals  so 
organized  may  exercise  all  functions  properly  conferred 
upon  them,  and  their  decisions  are  not  only  valid,  but 
are  not  subject  to  reversal  by  any  judicial  court ;  but 
only  by  the  final  action  of  the  President. 

So  also,  if  a  military  governor  is  placed  over  such 
hostile  district,  clothed  with  the  powers  of  the  Com 
mander-in-Chief,  he  may  himself  administer  the  laws  of 
war  over  those  subjected  thereto  within  his  precinct,  and 
may  establish  courts  military  and  civil,  with  jurisdiction 
over  all  persons  and  things  therein.  And  whether  he 
acts  on  his  own  discretion  in  so  doing,  under  general 
orders,  or  under  special  orders  in  each  case,  he  is,  ac 
cording  to  military  law,  responsible  only  to  his  superior 
officer. 

Although  no  civilian,  or  civil  or  merely  executive  officer, 
has  a  right  to  institute  a  military  court,  unless  deriving 
special  authority  to  do  so  from  some  law  of  Congress  or 
from  military  orders,  there  seems  to  be  no  reason  why 
any  of  the  war  powers,  in  time  of  actual  service,  may 
not  be  delegated  to  military  men  by  the  President,  or 
by  any  other  military  officer  who  possesses  them ;  and 
no  reason  for  making  any  distinction  between  the  dif 
ferent  classes  of  powers  which  may  be  so  delegated. 


CHAPTEE    VI. 

HOW  MILITARY  OR   PROVISIONAL    GOVERNMENTS    MAY  BE    CREATED 
AND    REGULATED    BY    CONGRESS. 

The  right  and  duty  of  administering  purely  military 
government  belongs  to  the  war-making  power,  which  is 
usually  subject  only  to  the  rules  of  the  belligerent  law. 
When  that  power  is  regulated  by  any  treaties,  constitu 
tion,  or  statutes  of  the  invading  country,  then  military 
governments  established  under  it  must  be  conducted  in 
accordance  with  the  laws  of  war,  as  modified  by  such 
legislative,  constitutional,  or  treaty  restrictions.  Thus, 
wherever  in  the  United  States  such  a  government  shall 
be  instituted  by  the  Commander:in-Chief,  his  administra 
tion  of  it  may,  to  a  certain  extent,  and  with  certain  lim 
itations,  be  regulated  by  acts  of  Congress. 

The  right  of  the  United  States  to  acquire  territory 
by  purchase,  treaty,  or  annexation,  necessarily  implies 
the  existence  in  Congress  of  the  power  to  establish 
some  form  of  government  over  regions  thus  added  to  the 
country.  Conquest  itself  confers  on  the  conqueror  au 
thority  to  make  laws  for  the  conduct  of  people  sub 
jected  to  his  power.  The  right  of  the  government 
when  conqueror  in  civil  territorial  war  to  make  rules 
and  regulations  relating  to  conquest  and  captures  may, 
by  the  Constitution  of  the  United  States,  be  exercised 
by  the  Legislative  Department. 

A  provisional  government,  partaking  in  a  high  de 
gree  of  a  martial  character,  may  be  ordained  and  estab 
lished  over  subjugated  districts  in  time  of  civil  war,  by  laws 

309 


310  MILITARY    GOVERNMENT. 

of  Congress,  and  may  be  administered  by  civilians  or  by 
military  persons,  appointed  by  the  President,  according 
to  the  requirements  of  the  statutes. 

It  is  also  the  duty  of  Congress  to  pass  all  laws  which 
are  proper  and  fit  to  aid  the  President  in  carrying  into 
effect  his  obligation  to  suppress  rebellion  and  enforce 
the  laws,  to  secure  domestic  tranquillity,  and  to  guaranty 
to  each  State  a  republican  form  of  government.*  And 
as  the  creation  and  administration  of  military  or  provis 
ional  governments  are  essential  means  of  accomplish 
ing  these  objects,  it  would  seem  for  this  reason  also  to 
be  the  duty  of  Congress,  in  aid  of  the  Commander-in- 
Chief,  and  without  interfering  with  his  military  opera 
tions,  to  erect  governments  over  the  subjugated  districts, 
clothed  with  powers  adequate  to  administer  the  laws  of 
war,  subject  to  the  Constitution  and  the  statutes  of  the 
United  States,  and  to  such  orders  as  the  President  may 
from  time  to  time  issue,  not  inconsistent  therewith. 
Governments  thus  established  rest  not  alone  upon  the 
military  power  of  the  President  as  Commander-in-Chief 
of  the  army  and  navy,  but  upon  the  war  powers  of  Con 
gress,  and  should  be  so  organized  as  to  endure  until  the 
people  of  these  districts  shall  be  again  permitted  to 
resume  self-government,  and  be  again  clothed  with  their 
former  political  rights.^ 

Therefore,  although  the  President  may,  while  en 
gaged  in  hostilities,  and  in  the  absence  of  laws  restrict 
ing  his  authority,  enforce  belligerent  rights  against  a 
public  enemy,  Congress  also  may  establish  rules  and 
regulations  which,  without  interfering  with  his  powers 

*  Constitution,  Art.  1,  Sect.  8,  Ch.  18.    See  ante,  p.  269. 

f  The  model  of  our  territorial  governments,  in  time  of  peace,  is  the  Ordinance  of  13th 
July,  1787. 

See  3  Story,  Com.  on  Const.  1312. 
Webster's  Speeches,  Jan.  1830,  pp.  360-364. 


MILITARY    GOVERNMENT.  311 

as  commander  of  the  arrny,  it  will  be  his  duty  to  admin, 
ister. 

In  a  province  to  be  subdued  by  soldiers,  the  only 
means  by  which  the  will  of  Congress,  or  the  will  of  the 
head  of  the  army  can  usually  be  carried  into  execu 
tion,  is  by  force  of  arms.  In  one  sense,  all  government, 
whether  provisional  or  quasi  civil,  established  under 
such  circumstances,  must  assume  a  military  character. 
In  that  view  it  can  be  controlled  by  Congress  only 
through  use  of  the  military  power  of  the  army.  Yet  the 
President  is  bound  to  execute  all  laws  which  Congress 
has  a  right  to  make ;  and  so  far  as  the  Legislature  has 
the  authority  to  interfere  with  or  control  the  President 
by  laws  or  by  regulations,  or  by  imposing  upon  him  the 
machinery  of  provisional  governments,  so  far  he  is 
bound  to  administer  them  according  to  statute. 

LIMITS    OF    POWER.        CONFLICT     BETWEEN     THE    WAR     POWERS    OF     THE 
PRESIDENT    AND    THE    LEGISLATIVE   POWERS    OF    CONGRESS. 

Though  the  Executive,  Legislative,  and  Judicial  de 
partments  of  our  government  are  to  a  certain  extent 
independent  of  each  other,  yet  no  one  of  these  depart 
ments  is  without  some  control  over  the  others.  The 
legislature  can  make  no  law  without  the  concurrence  of 
the  President,  unless  passed  by  two-thirds  of  the  voters 
in  both  houses;  and  laws,  when  made,  may  be  pro 
nounced  unconstitutional  by  the  Supreme  Judicial  Court. 
The  judiciary,  in  deciding  purely  political  questions,  are 
bound  to  follow  the  decisions  of  the  Legislative  or  Execu 
tive  departments,  and  are  in  other  respects  controlled  by 
the  action  of  the  coordinate  branches  of  the  govern 
ment.  The  Executive  can  make  treaties  only  by  con 
currence  of  the  Senate ;  and  most  of  the  appointments 
to  high  offices  must,  to  be  valid,  be  made  with  its 


312  MILITARY    GOVERNMENT. 

advice  and  consent.  The  President  cannot  declare 
war ;  but  Congress  can.  Congress  cannot  carry  on 
war ;  but  the  President  can.  Congress  may  make  rules 
and  regulations  concerning  captures,  and  for  the  gov 
ernment  and  regulation  of  the  land  and  naval  forces, 
when  in  service,  binding  upon  the  President,  whose 
duty  it  is  to  see  all  constitutional  laws  faithfully  exe 
cuted,  although  he  is  the  supreme  commander  of  the 
army  and  navy. 

Questions  may  therefore  arise  as  to  the  limitation  of 
the  respective  powers  of  the  Commander-in-Chief  in 
conducting  hostilities,  and  the  powers  of  Congress  in 
controlling  him,  by  virtue  of  this  legislative  right  to 
make  rules  and  regulations  for  the  government  of  mili 
tary  forces,  and  respecting  captures  on  land  and  sea. 

To  determine  how  far  Congress  may  interfere  with 
and  govern  the  military  operations  of  the  Executive, 
when  the  war  power  is  employed  in  enforcing  local  gov 
ernment  by  martial  law,  without  derogating  from  his 
power  as  Commander-in-Chief  of  the  army,  will  require 
careful  consideration,  inasmuch  as  such  government  can 
be  in  fact  maintained  and  enforced  only  by  military, 
and  not  by  legislative  authority. 

HOW   THESE   GOVERNMENTS   MAY   BE   TERMINATED. 

Military  governments  may  be  terminated  by  the  com 
manding  general  at  his  will,  by  withdrawal  of  the  officers 
who  administer  it. 

As  it  is  in  the  power  of  the  Legislative  Department  to 
declare  war,  and  to  provide  or  withhold  the  means  of 
carrying  it  on.  Congress  also  may,  after  hostilities  shall 
have  ceased,  declare  or  recognize  peace,  terminate  mili 
tary  or  provisional  governments,  or  may  regulate  them 


MILITARY    GOVERNMENT.  313 

and  cause  them  to  be  modified  or  wholly  withdrawn, 
whether  originally  erected  by  its  own  authority  or  by 
the  war  power  of  the  President,  and  may  institute  civil 
territorial  governments  in  their  place.*  Or  the  people 
of  any  district,  in  which  hostilities  have  ceased,  having 
formed  a  new  government  for  themselves,  by  permis 
sion  of  the  United  States,  may  be  admitted  into  the 
Union  as  a  State,  and  thus  the  military  government 
will  be  displaced.f  But  military  governments  are  not 
of  necessity  terminated  by  a  declaration  of  peace  be 
tween  belligerents,  or  by  a  cession  of  territory  in  dispute, 
but  may  be  continued  long  after  war  ceases,  by  pre 
sumed  assent  of  the  President  and  of  Congress.  "  The 
right  inference,"  says  Mr.  Justice  Wayne,  in  deliv 
ering  the  unanimous  opinion  of  the  Supreme  Court,  J 
"  from  the  inaction  of  both  the  President  and  of  Congress, 
is,  that  it  (the  military  government)  was  meant  to  be  con 
tinued  until  it  had  been  legislatively  changed.  No  pre 
sumption  of  a  contrary  intention  can  be  made.  Whatever 
may  have  been  the  cause  of  delay,  it  must  be  presumed 
that  the  delay  was  consistent  with  the  true  policy  of 
the  Government."  "  California  and  New  Mexico  were 
acquired  by  conquest  confirmed  by  cession.  During  the 
war  they  were  governed  as  conquered  territory,  under 
the  law  of  nations,  and  in  virtue  of  the  belligerent  rights 
of  the  United  States  as  the  conqueror,  by  the  direction 
and  authority  of  the  President  as  Commander-in-Chief. 
By  the  ratification  of  the  treaty  of  Guadalupe-Hidalgo, 
on  the  20th  of  May,  1848.  they  became  a  part  of  the 
United  States,  as  ceded  conquered  territory.  The  civil 
governments  established  in  each  during  the  war,  and 
existing  at  the  date  of  the  treaty  of  peace,  continued  in 

*  Note  to  Forty-third  Edition.  —  See  note  on  Military  Government  and  Reconstruc 
tion,  pp.  427-451. 

t  See  Index,  "  Reconstruction." 
I  Cross  v.  Harrison,  16  How.  193. 

40 


314  MILITARY    GOVERNMENT. 

operation  after  that  treaty  had  been  ratified.  Califor 
nia,  with  the  assent  and  cooperation  of  the  existing  gov 
ernment,  formed  a  constitution  which  was  ratified  by  its 
inhabitants,  and  a  State  government  was  put  in  full  op 
eration  in  December,  1849,  with  the  implied  assent  of 
the  President,  the  officers  of  the  existing  government 
of  California  publicly  and  formally  surrendering  all 
their  powers  into  the  hands  of  the  newly-constituted 
authorities.  The  constitution  so  formed  and  ratified 
was  approved  by  Congress,  and  California  was,  on  the 
9th  of  September,  1850,  admitted  into  the  Union  as  a 
State.  New  Mexico  also  formed  a  constitution,  and  ap 
plied  to  Congress  for  admission  ;  the  application  was 
not  granted,  but  on  the  9th  of  September,  1850,  New 
Mexico,  and  that  part  of  California  not  included  within 
the  limits  of  the  new  State,  were  organized  into  terri 
tories,  with  new  territorial  governments,  which  took  the 
place  of  those  organized  during  the  war,  and  existing 
on  the  restoration  of  peace."  * 

Such  governments,  founded  only  in  and  sustained  by 
war  power,  are,  when  peace  is  officially  recognized,  en 
tirely  within  the  control  of  Congress. 

When  the  enemy  have  laid  down  their  arms,  and 
make  no  further  opposition  to  the  execution  of  our  laws, 
there  can  exist  no  reason  why  the  President  should  not 
obey  and  enforce  the  rules  and  statutes  of  Congress, 
regulating  his  own  conduct  and  the  military  governments 
and  military  tribunals  established  by  him.  No  reason 
could  be  offered  to  explain  why  he  should  not  make 
complete  and  unquestioning  submission  to  the  will  of 
the  people.  His  refusal  to  do  so  would  subject  him  to 
impeachment. 

*  Halleck,  Int.  Law,  828,  829. 


MILITARY    GOVERNMENT.  315 

There  seems  to  be  less  danger  to  civil  liberty  from 
the  use  of  military  governments  and  tribunals  as  tem 
porary  instruments  for  carrying  on  war  and  of  securing 
conquest,  than  from  any  other  mode  of  employing  mili 
tary  forces. 


CHAPTER    VII. 

IT  has  been  shown  in  the  foregoing  chapters,  that 
the  President  has  authority  to  establish  military  gov 
ernments  over  enemy's  territory  in  time  of  civil  war, 
because  the  Constitution,  by  designating  him  as  Com- 
inander-in-Chief  of  the  Army  and  Navy,  confers  on  him 
the  right  to  use,  in  prosecuting  hostilities,  all  means 
which  may  be  necessary  and  proper  for  that  purpose, 
including,  as  such  means,  the  establishment  of  military 
governments  and  of  military  courts,  which  are  not  only 
the  necessary  but  are  the  usual  means  employed  by 
belligerents  in  making  war,  and  in  securing  the  objects 
for  which  it  has  been  carried  on.  This  right  has  been 
recognized  and  sanctioned  in  several  cases  by  the  Su 
preme  Court  of  the  United  States.  Our  next  inquiry 
relates  to  the  character  and  extent  of  the  powers  which 
may  be  exercised  by  military  governments. 

JURISDICTION  OF   MILITARY   GOVERNMENTS. 

To  such  military  governments  as  are  established  by 
the  Commander-in-Chief,  in  time  of  war,  he  may  dele 
gate  more  or  less  power,  according  to  the  object  for 
which  he  has  instituted  them. 

In  the  District  of  Columbia,  a  military  governor  has 
been  appointed  for  the  performance  of  certain  limited 
duties  essential  to  the  police  regulation  of  the  forces 
stationed  within  the  defences  of  Washington,  the 
treatment  of  persons  under  arrest  and  in  prison,  and 
other  important  specific  duties.  In  the  mean  time,  the 

316 


MILITARY    GOVERNMENT.  317 

sessions  of  the  Supreme  Court  of  the  United  States,  and 
of  the  local  courts,  and  of  Congress,  and  the  business  of 
all  the  departments  of  the  Government,  are  undisturbed. 

In  districts  of  country  declared  to  be  in  rebellion, 
whose  inhabitants  are  "  public  enemies,"  such  govern 
ments  have  been  commissioned  with  powers  to  adminis 
ter  local,  municipal,  civil,  and  criminal  law,  and  with 
jurisdiction  embracing  all  persons  and  all  questions 
which  may  arise  therein. 

There  is  no  other  necessary  limit  to  the  jurisdiction 
of  a  military  governor,  than  there  is  to  that  authority 
under  which,  he  received  his  appointment.  The  exist 
ence  of  state  or  municipal  governments,  or  of  military, 
civil,  or  ecclesiastical  tribunals,  established  before  the 
war  began,  in  the  rebellious  districts,  does  not  affect  the 
jurisdiction  of  such  governments  or  courts  as  may  be 
erected  therein  by  the  war  power  of  the  United  States. 
Since  these  sections  of  country  have  become  hostile  — 
the  inhabitants  thereof  being  now  public  enemies  —  no 
authority  of  such  enemies,  executive,  judicial,  or  military, 
can  be  recognized  by  the  conqueror  as  rightful  or  legit 
imate.  No  legislature,  no  judiciary  of  a  public  enemy, 
can  be  permitted  to  retain  or  exercise  any  jurisdiction 
or  control  over  persons  or  property  found  in  that  region 
which  is  within  the  military  occupation  of  our  army. 

The  enemy's  courts  and  legislatures  derive  their  right 
to  ordain  and  enforce  laws  from  a  government  at  open 
war  with  our  own, —  one  which  we  refuse  to  recognize, 
and  we  might  as  well  acknowledge  the  independence  of 
the  seceding  States,  and  surrender  our  army  and  navy 
to  the  insurgents,  as  to  subject  ourselves  or  to  allow  others 
to  be  subjected  to  their  laws,  their  courts,  or  their  juris 
diction.  A  public  enemy  has  no  right,  either  by  courts 
instituted  by  him,  or  by  any  civil,  military,  or  judicial 


318  MILITARY    GOVERNMENT. 

officers  appointed  by  him,  to  exercise  authority  in  any 
locality  which  is  held  by  our  military  power.  But  all 
persons  and  all  subjects  who  are  found  there,  are  under 
our  military  control,  whether  that  control  be  exercised 
by  soldiers  in  the  field,  or  by  military  governors,  who 
may  call  to  their  aid  military  tribunals,  or  may  even 
allow  civil  tribunals  to  proceed  under  military  authority. 

The  only  limitations  to  the  jurisdiction  of  such  military 
power  over  persons  and  property,  are  such  as  are  de 
rived  from  the  laws  of  war;  though  in  the  United 
States  further  limitations  may  be  prescribed  by  laws  of 
Congress. 

Hence,  aliens  residing  in  belligerent  districts,  non- 
combatants,  whether  neutral,  friendly  or  hostile,  persons 
engaged  in  hostility,  persons  belonging  to  the  invading 
country,  and  accompanying  the  army,  are  alike  within 
the  jurisdiction  of  a  military  government,  and  of  mil 
itary  courts  duly  established  therein. 


CHAPTER    VIII. 

THE   LAW    ADMINISTERED    BY   MILITARY    GOVERNMENTS. 

As  the  powers  of  a  de  facto  government  belong  to  the 
conqueror  by  the  laws  of  war,  he  may  suspend,  modify, 
or  abrogate  all  municipal  laws  of  those  whom  he  has 
conquered  ;  he  may  disregard  their  former  civil  rights 
and  remedies;  he  may  introduce  and  enforce  a  new 
code  of  laws,  military  and  municipal,  and  may  carry 
them  into  effect  by  new  military  tribunals,  having  abol 
ished  all  courts  and  offices  held  under  the  authority  of 
his  enemy.  * 

It  has  been  held  by  the  Supreme  Court  that  "  the 
laws,  whether  in  writing  or  evidenced  by  the  usage  and 
customs  of  the  conquered  or  ceded  country,  continue  in 
force  till  altered  by  the  new  sovereign."  *j* 

While  they  continue  in  force,  it  is  by  the  express  or  im 
plied  permission  of  the  new  sovereign,  and  until  altered 
by  him.  They  are  recognized  only  as  an  expression  of 
the  will  of  the  conqueror.J  If  the  law  should  conflict 
with  the  will  of  the  conqueror,  the  LAW  must  yield ; 

*  Halleck,  Int.  Law,  pp.  830,  831,  and  cases  there  cited. 

Bovvyer,  Universal  Public  Law,  ch.  16,  158. 

Fabrigas  v.  Mostyn,  1  Cowper,  165. 

Gardner  v.  fell,  1  Jacob  and  Walker,  27. 

I 'lemming  et  al.  v.  Page,  9  How.  603. 

Am.  Ins.  Co.  v.  Canter,  1  Peters,  542. 

Cross  et  al.  v.  Harrison,  16  How.  164. 

Heffter,  Droit  Int'l,  sect.  185. 

t  Strother  v.  Lucas,  12  Peters,  436,  and  authorities  there  cited. 

\  For  the  operation  of  transfers  of  territory  upon  the  laws  and  rights  of  the  inhab- 

319 


320  MILITARY    GOVERNMENT. 

otherwise  the  conqueror  would  be  subjected  to  the  rule 
of  those  whom  he  has  subjugated. 

But  the  local  laws  of  a  conquered  country  may  be 
changed  not  only  by  the  law-making  power  of  the  con 
quering  country,  but  by  virtue  of  the  BELLIGERENT  rights 
of  the  conqueror.* 

All  these  propositions  follow  from  the  fact  that  the 
power  of  a  public  enemy  to  make  or  administer  law  is 
terminated  by  the  conquest  of  their  territory  by  a  dif 
ferent  law-making  and  law-administering  power,  viz., 
that  of  the  conqueror. 

The  local  laws  of  a  conquered  country  of  which  our 
army  holds  military  occupation,  have  no  force  or  effect 
whatever,  except  by  our  permission.f  When  such  local 
laws  agree  with  those  of  the  invading  country,  such 
laws  may  be,  and  usually  are,  adopted  and  sanctioned 
because  they  do  so  agree  therewith.  Thus  rules  gov 
erning  the  rights  of  property,  the  relations  of  persons, 

itants  of  the  territory  ceded  or  conquered,  see,  among  other  authorities,  the  following-, 
viz:  — 

Vattel,  B.  B.  ch.  13,  sects.  199,  201. 

4  Com.  Dig.  Ley.  (C.) 

Calvin's  Case,  7  Coke,  170. 

Blanhard  v.  Galdy,  2  Salk.  411 ;  S.  C.  2  Mod.  222. 

Mostyn  v.  Fabriyas,  Cowp.  105. 

Hall  v.  Campbell,  Cowp.  204,  209. 

Anon.  2  P.  Williams,  70. 

Exparte  Prosser,  2  Br.  C.  C.  325. 

ElpMnstone  v.  Bedreechund,  Knapps,  P.  C.  K.  338. 

Exparte  Anderson,  5  Ves.  240. 

Evelyn  v.  Forster,  8  Ves.  96. 

Sheddon  v.  Goodrich,  8  Yes.  482. 

2  Ves.  Jr.  349. 

AtVy  Gerfl  v.  Stewart,  2  Meriv.  154. 

Gardiner  v.  Fell,  1  Jac.  and  W.  77. 

8  Wheaton,  589  ;  12  Wheaton,  528-535. 
6  Pet.  712;  7  Pet.  80,  87;  8  Pet.  444-405. 

9  Pet.  133,  734,  749. 

*  Cross  v.  Harrison,  10  How.  199. 

t  Note  to  Forty-third  Edition.  —  Several  of  the  seceded  States,  since  the  surrender  of 
the  rebel  armies,  have  either  passed,  or  have  attempted  to  enforce,  their  local  laws  in 
relation  to  freedmen  and  colored  citizens,  which  have  been  forcibly  set  aside  by  the 
commanders  of  our  military  departments  under  the  reconstruction  acts. 


MILITARY    GOVERNMENT.  321 

and  the  laws  of  crimes  in  the  respective  countries  of 
the  belligerents,  are  often  so  nearly  alike  that  the  ad 
ministration  of  them  is  permitted  to  remain  unchanged 
even  in  war.  But  no  laws  or  institutions  established 
by  law  are  permitted  to  survive,  which  are  in  conflict 
with  those  of  the  conqueror. 

In  all  cases,  the  will  of  the  conqueror  governs.  Hence, 
in  a  ceded  or  subjugated  territory,  all  laws  violating 
treaty  stipulations  with  foreign  nations,  or  granting 
rank  and  titles  or  commercial  privileges  in  conflict  with 
the  institutions  of  the  conqueror,  are  abrogated.* 

It  has  been  asserted  that  the  municipal  laws  of  a 
belligerent  territory  remain  in  force,  "proprio  vigore" 
until  altered  by  military  orders ;  but,  although  such 
laws  may  have  been  tacitly  adopted,  or  the  enforcement 
thereof  may  have  been  permitted,  it  is  not  because 
these  laws  retained  any  validity  " proprio  vigor  e"  Their 
only  validity  was  derived  from  the  tacit  or  express  sanc 
tion  and  adoption  thereof  by  the  will  of  the  commander- 
in-chief  of  the  invading  army. 

In  case  of  conquest  of  a  foreign  country,  the  ques 
tion  has  been  asked,  what  laws,  if  any,  of  the  invading 
country  are  ipso  vigore,  and  without  legislation  extended 
over  the  territory  acquired  in  war  ? 

The  suppression  of  the  present  rebellion  is  not  the 
conquest  of  a  foreign  country.  The  citizens  of  the 
United  States  residing  in  the  districts  in  rebellion  are  not 
alien  enemies,  though  they  are  public  enemies  \  and  it  is 
important,  in  several  points  of  view,  to  observe  the  dis- 

*  Ilalleck,  Int.  Law,  833,  834,  and  authorities  there  cited  : 
Bowyer,  Univ.  Pub.  Law,  ch.  16. 
Campbell  v.  Hall,  1  Cowper,  205. 
Fabrigas  v.  Mostyn,  1  Cowp.  165. 
Gardner  v.  Fell,  i  Jacob  and  Walk.  27,  30,  note. 
Att'y  Gen'l  v.  Stewart,  2  Merivale,  159. 

41 


322  MILITARY    GOVERNMENT. 

tinction  between  enemies  who  are  subjects  of  a  foreign 
government,  and  are  therefore  called  "  alien  enemies  "  and 
those  who  are  denizens  and  subjects  of  the  United  States, 
and  being  engaged  in  civil  war,  are  called  "public  ene 


mies" 


An  alien  owes  no  allegiance  or  obedience  to  our 
government,  or  to  our  constitution,  laws,  or  proclama 
tions.  A  citizen  subject  is  bound  to  obey  them  all.  In 
refusing  such  obedience,  he  is  guilty  of  crime  against 
his  country,  and  finds  in  the  law  of  nations  no  justifi 
cation  for  disobedience.  An  alien,  being  under  no 
such  obligation,  is  justified  in  refusing  such  obedience. 
Over  an  alien  enemy,  our  government  can  make  no 
constitution,  law,  or  proclamation  of  obligatory  force, 
because  our  laws  bind  only  our  own  subjects,  and  have 
no  extra-territorial  jurisdiction. 

Over  citizens  who  are  subjects  of  this  government, 
even  if  they  have  so  far  repudiated  their  duties  as  to 
become  enemies,  our  constitution,  statutes,  and  procla- 
tions  are  the  supreme  law  of  the  land.  The  fact  that 
their  enforcement  is  resisted  does  not  make  them  void. 
It  is  not  in  the  power  of  armed  subjects  of  the  Union 
to  repeal  or  legally  nullify  our  constitution,  laws,  or 
other  governmental  acts. 

The  proclamations  of  the  President,  issued  against 
insurgents,  in  the  performance  of  duties  imposed  on 
him  by  the  Constitution  ;  the  Acts  of  Congress,  in  exe 
cuting  its  powers ;  and  the  decisions  of  the  Supreme 
Court  of  the  United  States,  are  all,  in  one  respect,  "  like 
the  Pope's  bull  against  the  comet;"  these  proclama 
tions,  laws,  and  decisions  will  be  alike  resisted  and 
spurned  by  our  adversaries  so  long  as  they  can  carry 
on  the  war.  But  when  the  soldiers  of  the  Union 
shall  have  routed  and  dispersed  the  last  armed 


MILITARY    GOVERNMENT.  323 

force  of  the  rebellion,  and  when  the  supremacy  of  our 
military  power  shall  be  undisputed,  the  constitution, 
proclamations,  laws  of  Congress,  and  decisions  of  the 
Supreme  Court  will  at  the  same  time,  pari  pasm,  be 
acknowledged  and  enforced.  It  is  therefore  idle  to 
speculate  upon  the  legal  validity  and  operation  of  the 
proclamation  liberating  enemies'  slaves,  in  districts  not 
yet  secured  by  our  military  possession.  It  would  be 
equally  useless  to  attempt  to  determine  the  validity  and 
operation  of  our  constitution,  laws,  and  decisions  of 
.courts  in  these  rebellious  districts.  Neither  of  them 
will  be  enforced  upon  the  enemy  until  they  have  been 
subjugated.  When  that  event  takes  place,  whether  it 
be  the  result  of  battles  or  of  returning  sanity  of  repent 
ant  madmen,  the  army  of  the  United  States  will  then 
have  actual  possession  of  every  portion  of  the  United 
States,  and  of  every  slave  who  may  be  found  therein  ; 
and  the  right  of  the  slave  to  his  freedom  under  the  con 
stitution  and  under  the  statutes  passed,  and  the  procla 
mations  issued  by  the  government  during  the  war,  will 
be  secured  to  him  at  the  same  time  that  other  rights 
under  the  same  constitution  and  proclamations  will  be 
secured  to  the  other  inhabitants  of  the  country.  And 
there  can  be  no  doubt  that  in  civil  war  the  laws  of  the 
United  States,  rightfully  extending  at  all  times  over  the 
whole  country,  are  to  be  enforced,  so  far  as  applicable, 
in  time  of  war,  over  the  belligerent  territory  as  fast  as  it 
comes  under  our  military  control ;  and  that  in  case  of 
complete  conquest,  the  constitution  and  laws  of  the 
Union  will  be  restored  to  full  operation  over  all  the  in 
habitants  thereof.  At  the  same  time,  the  laws  of  war  will 
have  swept  away  all  local  hostile  authorities,  and  all 
laws,  rights,  and  institutions  resting  solely  thereon. 


324  MILITARY    GOVERNMENT. 

The  Commander-in-Chief  has  the  right,  during  war 
to  treat  their  local  laws  as  inoperative,  or  to  adopt  some 
and  reject  others ;  to  permit  the  holding  of  courts  by 
local  authorities  acting  under  military  power  of  the 
conqueror,  or  to  forbid  them,  and  to  substitute  military 
courts  of  his  own.  Having  all  the  rights  of  war  over 
the  subjugated  inhabitants,  he  has  all  the  powers  of  a 
government  de  facto  and  de  jure,  and  can  therefore  im 
pose  upon  them  whatever  laws  or  regulations  may  suit 
his  pleasure,  in  accordance  with  the  laws  of  war.  The 
LAWS  OF  WAR  are  the  only  laws  required  by  the  Consti 
tution  to  be  laid  by  military, power  upon  public  ene 
mies  in  time  of  civil  war.  Congress  may  modify  by 
legislation  the  hardship  of  belligerent  rights. 

But  whatever  may  be  done  or  omitted  by  the  Presi 
dent  or  by  Congress,  the  laws  and  municipal  institutions 
of  the  conquered  inhabitants  are  "  swept  by  the  board." 
Whatever  law  is  rightfully  administered,  is  law  expressly 
declared  or  tacitly  permitted  by  the  will  of  the  con 
queror.* 

JUDICIAL    COURTS    OF    THE    UNITED    STATES. 

The  courts  judicial,  as  established  by  laws  of  Con 
gress  in  the  seceded  States,  having  been  closed  by  civil 
war,  may  be  reestablished  whenever  the  districts  over 
which  they  have  jurisdiction  shall  be  permanently  re 
duced  under  the  power  of  the  United  States. 

When  the  officers  of  such  courts,  either  by  engaging 

*  For  authorities  on  this  question,  see 
Halleck,  Int.  Law,  832. 
Calvin's  Case,  Coke's  Rep.  part  7. 
Gardner  v.  Fell,  1  Jacob  and  Walker,  22. 
Cross  v.  Harrison,  10  How.  1G5. 
Collet  v.  Lord  Keith,  2  East.  260. 
Blankard  v.  Guldy,  4  Mad.  225. 


MILITARY    GOVERNMENT.  325 

in  rebellion  or  otherwise,  have  become  in  law  public 
enemies,  their  right  to  exercise  judicial  or  other  func 
tions  under  authority  of  the  United  States  ceased,  and 
their  offices  were  vacated.  If  new  appointments  were 
to  be  made  now,  it  is  obvious  that  the  authority  of 
courts  could  be  enforced  only  by  military  power ;  their 
jurisdiction  would  be  very  limited ;  such  juries  as  they 
could  summon  would  probably  be  hostile  to  the  Union, 
and  the  powers  of  judges,  under  present  laws,  would  be 
be  totally  inadequate  to  meet  the  demands  of  these 
turbulent  times.  Hence  it  would  be  worse  than  useless 
to  erect  judicial  courts  before  peace  is  completely  re 
stored.*  It  would  tend  to  bring  the  judiciary  into  con 
tempt.  Therefore  it  can  hardly  be  deemed  advisable  to 
interfere  with  the  stern,  effective,  but  necessary  gov 
ernment  of  hostile  people  by  military  power,  until 
Congress  shall  by  legislative  act  recognise  a  state  of 
peace.f 

*  See  remarks  of  Chief  Justice  Chase,  at  Raleigh,  N.  C.,  in  June,  1866:  Appendix,  596. 

t  Note  to  Forty-third  Edition.  —  Since  this  was  written,  the  condition  of  the  rebel 
States  has  changed.  They  have  all  been  restored  to  the  Union  under  the  provisions  of 
the  reconstruction  acts,  and  by  the  instrumentality  ol  military  governments. 


WAR    CLAIMS, 


AGAINST 


THE   UNITED   STATES 


PREFACE  TO  THE  WAR  CLAIMS. 


THE  following  essay  on  claims  against  the  United  States  for 
injuries  done  to  the  persons  and  property  of  foreigners  by  our 
military  and  naval  forces  during  the  war,  was  in  substance  pre 
pared  while  the  author  was  Solicitor  of  the  War  Department.  In 
pursuance  of  an  understanding  with  Mr.  Seward,  Secretary  of 
State,  and  Mr.  Stanton,  Secretary  of  War,  a  practice  was  adopted, 
and  adhered  to  throughout  the  war,  of  referring  to  the  Solicitor 
of  the  War  Department  for  his  investigation  and  opinion  such 
claims  against  the  United  States  for  damage  or  indemnity,  grow 
ing  out  of  our  military  operations,  as  had  been  or  should  be  pre 
sented  by  the  ministers  or  other  representatives  of  foreign  powers. 
The  results  of  such  investigations  were  transmitted  in  writing  to 
the  Secretary  of  State,  who  was  at  liberty  to  make  such  use  of 
them  as  he  thought  proper  in  preparing  his  official  correspondence. 

The  Opinions  appended  to  this  essay,  which  embrace  some  of 
those  above  mentioned,  were  written  under  great  pressure  of 
business.  It  is  hoped  that,  however  imperfect  in  style,  they  may 
be  found  correct  in  substance.  The  essay  on  "  War  Claims  "  was 
composed  at  the  request  of  the  Secretary  of  State,  in  order  to 
facilitate  the  labors  of  those  on  whom,  after  the  author's  retire 
ment  from  office,  the  duty  might  devolve  of  examining  similar 
42 


330 


PREFACE    TO    THE    WAR    CLAIMS. 


questions;*  and  with  a  view  to  secure  uniformity  of  decisions  by 
the  government.  The  first  printed  edition  was  issued  in  1866, 
and  was  distributed  among  the  officers  of  the  War,  State,  and 
Navy  Departments,  and  has  been  in  use  down  to  the  present 
time.  A  request  for  a  new  edition  has  induced  the  author  to  add 
it  to  the  present  publication,  with  the  subject  matter  of  which  it 
is  closely  connected. 

*  The  office  of  Solicitor  of  the  War  Department  was  created  by  Statute  20  February, 
1803,  Chap.  44,  Sect.  3.  The  author  was  appointed  Solicitor  under  this  act  at  the  time  of 
its  passage.  Although  he  resigned  his  office  when  the  war  was  over  (in  April,  1865),  and 
the  law  which  established  it  was  not  repealed  until  the  passage  of  the  act  of  28th  July, 
1806,  no  successor  was  ever  appointed. 


WAR    CLAIMS 


AGAINST 


THE    UNITED    STATES. 


THE  inhabitants  of  countries  involved  in  domestic  or 
civil  war  are  liable  to  suffer  injuries  to  their  property 
and  to  their  persons  by  the  military  operations  of  both 
belligerents.  Whether  they  have  legal  claims  to  in 
demnification  for  losses  sustained  by  them  depends 
upon  their  political  status,  as  defined  and  recognized  by 
the  law  of  nations,  or  by  treaties,  or  by  the  constitu 
tions  and  laws  of  the  community  with  which  they  have 
been  associated.  In  order  to  discern  with  more  clear 
ness  the  political  relations  of  the  claimants  to  the  gov 
ernment,  it  should  be  observed  that  our  citizens,  when 
carrying  on  war  against  a  foreign  enemy,  differ  widely 
from  rebels  in  arms  against  their  lawful  government 
as  to  their  respective  rights  and  liabilities,  as  defined 
by  international  or  belligerent  law  and  by  the  consti 
tution  and  laws  of  the  United  States.  Kebels  in  civil 
war,  if  allowed  the  rights  of  belligerents,  are  not  enti 
tled  to  all  the  privileges  usually  accorded  to  foreign 
enemies.  An  alien  enemy  is  a  public  enemy ;  but  a 

(331) 


332  WAR    CLAIMS    AGAINST    THE   UNITED    STATES. 

public  enemy  may  not  be  an  alien  enemy.  As  the 
rightful  authority  of  our  government  over  its  rebellious 
subjects,  who  have  become  public  enemies,  is  far 
greater  than  it  would  be  over  alien  enemies,  it  is  not 
wise  or  prudent,  in  the  present  condition  of  our  coun 
try,  to  surrender  or  to  underrate  that  authority. 

Of  persons  who  now  demand  indemnity  there  are  two 
classes  :  1st,  Those  whose  property  has  been  used,  cap 
tured,  or  destroyed  by  rebel  armies  ;  and,  2d,  Those  who 
have  suffered  similar  injuries  by  the  military  operations 
of  the  national  forces.  That  the  political  relations  of 
this  second  class  to  the  general  government  may  be 
more  distinct!}^  defined,  it  will  be  found  convenient  to 
arrange  these  claimants  in  the  following  order :  — 

1.  Loyal  citizens  of  the  United  States  domiciled  in 
the  loyal  States. 

2.  Disloyal  citizens  of  the  United  States  who  have 
given  aid  and  comfort  to  the  rebellion,  although  they 
have  retained  their  domicile  in  the  loyal  States. 

3.  Loyal  citizens  of  the  United  States  domiciled  in 
the  Confederate  States. 

4.  Disloyal  citizens  of  the  United  States  domiciled  in 
the   Confederate  States,  being  such  as  have  aided  or 
favored  the  rebellion,  or  such  as  have  remained  non- 
combatants. 

5.  Aliens,  within  the  United  States,  owing   allegi 
ance  to  a  foreign  government. 

Claims  to  compensation  for  injuries  inflicted  on 
aliens  during  the  rebellion  will  be  the  subject  of  the 
following  observations :  The  rights  of  our  own  citi 
zens  to  indemnity  may  be  the  subject  of  a  subsequent 
examination. 


EFFECT    OF    CONCEDING   BELLIGERENT    RIGHTS.  333 

Foreigners  dwelling  or  being  within  the  United 
States  during  the  war  may  be  distinguished  as  fol 
lows  :  — 

1.  Those  who  have  given  aid  to  the  rebellion. 

2.  Those  who  have  been  naturalized  under  the  laws 
of  the  United  States. 

3.  Neutral  non-naturalized  aliens  who  have   exer 
cised   the    elective   franchise   in    either   of  the   loyal 
States. 

4.  Neutral  non-naturalized  aliens  who  have  acquired 
a  permanent  domicile  in  the  United  States,  and  were 
inhabitants  thereof  during  the  war,  either,  («.)  in  the 
rebel  States,  or,  (#.)  in  the  loyal  States. 

5.  Neutral   non-naturalized  aliens,  who,  when  hos 
tilities   commenced,  were    merely   travellers    passing 
through  the  rebel  States ;  or  were  inhabitants  thereof 
for  some  limited  purpose,  and  had  a  temporary  resi 
dence,  but  not  a  personal  domicile,  therein ;  of  whom 
there  are,  (a.)  those  who  chose   to  remain  during  the 
war ;    and,    (#.)    those  who,    within    reasonable    time, 
withdrew  their  persons  and  their  property  from  the  de 
facto  rebel  jurisdiction. 

6.  Neutral  aliens,  whose  mercantile  domicile  was  in 
the  rebel  States,  whatever  may  have  been  the  place  of 
their  personal  domicile. 

With  regard  to  claims  for  depredations  committed 
by  rebels,  it  is  sufficient  to  observe  that  the  concession 
of  belligerent  rights  to  the  so-called  government  of  the 
Confederate  States  by  a  European  power,  releases  the 
United  States  from  all  claims  for  injuries  inflicted  upon 
the  subjects  of  that  power  by  the  hostile  operations  of 
the  Confederate  forces.  If  the  acts  of  our  rebellious 
citizens,  injurious  to  foreigners,  had  been  deemed  and 


334  WAR    CLAIMS    AGAINST   THE   UNITED    STATES. 

treated  as  merely  insurrectionary,  we  might  have  been 
liable  to  indemnify  foreigners  against  them;  but  no 
liability  for  their  acts  exists  in  cases  where  rebellious 
citizens  are  clothed  by  foreign  nations  with  the  immu 
nity  of  belligerents,  and  are  admitted  to  the  quasi 
national  rank  of  combatants  in  civil  war.  If  aliens 
have  any  claim  for  losses  or  injuries  occasioned  by  the 
hostilities  of  the  Confederate  government,  to  that  gov 
ernment  alone  they  must  look  for  compensation.  The 
law  of  war  requires  no  nation  to  indemnify  neutrals  for 
injuries  inflicted  on  them  by  its  enemy.* 

^The  practice  of  modern  nations  has  established  cer 
tain  general  rules  of  public  law  which  declare  the  rights 
of  neutrals  and  of  belligerents  in  civil  as  well  as  in 
international  wars ;  and  of  these  the  following  deserve 
especial  attention  in  dealing  with  the  rights  and  liabil 
ities  of  foreigners. 

"  Aliens  resident  here  owe  allegiance  to  the  United 
States  ;  so  if  they  are  abroad  and  leave  their  families 


here."  f 


Fhgrante  Mlo  no  subject  of  a  belligerent  can  transfer 
allegiance,  or  acquire  foreign  domicile,  by  emigration 
from  his  own  country,  so  as  to  protect  his  trade  against 
the  belligerent  laws  of  that  country,  or  against  those 
of  a  hostile  power. % 

Every  nation,  whenever  its  laws  are  violated  by  any 
one  owing  obedience  to  them,  whether  he  be  a  citizen 
or  a  stranger,  has  a  right,  with  certain  exceptions,  to 

*  See  Letter  of  Mr.  Canning  to  Mr.  Del  Rios,  March  25,  1825.  Papers  relating  to  For- 
ei-n  Affairs,  p.  89.  Mr.  Adams,  June  11,  1801.  Mr.  Black  to  Lord  Lyons,  Jan.  10,  1801. 
Cong.  Doc.  36  Cong.  2d  Sess.  Wheaton's  Int.  Law,  p.  41,  note  of  Mr.  Lawrence. 

f  3  Greenlcaf  on  Evidence,  p.  239,  note. 

\  Ilallcck,  Int.  Law,  717,  sect.  20,  and  cases  there  cited. 


GENERAL   RULES.  335 

inflict  the  penalties  incurred  upon  the  transgressor,  if 
found  within  its  jurisdiction.* 

"  When  a  nation  is  at  war  with  another  nation,  all  the 
members  of  the  one  nation  are  the  enemies  of  the  other 
nation.  This  rule  of  joint  association  in  war  applies  to 
adopted  citizens  equally  as  to  natural  born  citizens."  f 

In  the  language  of  Grotius,  "All  the  subjects  of  the 
sovereign  from  whom  an  injury  has  been  received,  who 
are  such  for  a  permanent  cause,  are  liable  to  the  law  of 
reprisals,  whether  they  be  natives  or  citizens."  J 

"  Strangers  who  come  into  an  enemy's  country  after 
a  war  has  been  begun  and  is  known  to  exist,  may,  un 
doubtedly,  be  treated  as  enemies ;  and  those  who  have 
gone  thither  before  the  war  commenced,  may,  by  the 
law  of  nations,  be  taken  for  enemies  after  a  moderate 
time  within  which  they  should  depart."  § 

"  Foreigners  who,  by  acquired  domicile,  participate  in 
the  commercial  privileges  of  the  citizens  or  subjects  of 
a  country,  must  also  share  the  inconveniences  to  which 
the  latter  are  subjected."  || 

"  It  is  undoubtedly  a  principle  of  international  law," 
said  Lord  Palmerston  in  relation  to  claims  against  us 
of  British  merchants,  growing  out  of  our  bombardment 
of  Grey  town,  "  that  when  one  government  deems  it  right 
to  exercise  acts  of  hostility  against  the  territory  of  an 
other  power,  the  subjects  and  citizens  of  third  powers, 

*  See  Mr.  Marcy's  Letter  to  Mr.  Jackson,  charge  d'affaires  at  Vienna,  Jan.  10,  1854. 
Con-.  Doc.  33  Cong.  1  Sess.  H.  K.  Ex.  Doc.  41.  Huberus,  torn.  ii.  1.  i.  tit.  3,  De  Conflict. 

t  Tvviss,  Law  of  Nations,  vol.  i.  p.  82. 

i  Grotius,  DC  Jure  B.  et  P.,  L.  III.  c.  2,  §  8,  2. 

§  Grotius,  De  Jure  B.  et  P.,  L.  III.  c.  4,  §  (5,  7. 

||  Wheaton,  p.  173,  note  59.    See  answer  of  Mr.  Marcy,  Secretary  of  State,  Feb.  20,  1857, 

M.  de  Sartiges,  Minister  of  France,  in  reply  to  his  application  for  indemnity  for  prop 
erty  of  French  subjects  destroyed  by  the  naval  forces  of  the  United  States  in  the  bombard 
ment  of  Greytown.  See  Senate  Ex.  Doc.  No.  9,  35  Con<r  1st  Sess 


336  WAR    CLAIMS    AGAINST    THE   UNITED    STATES. 

who  may  happen  to  be  resident  in  the  place  attacked, 
have  no  claim  whatever  upon  the  government  which, 
in  the  exercise  of  its  national  rights,  commits  these  acts 
of  hostility." 

In  this  opinion  the  attorney-general  concurred ;  and 
he  stated  that  France,  as  well  as  England,  had  refrained 
from  making  demand  on  the  United  States  for  satisfac 
tion  for  losses  incident  to  the  destruction  of  that  ill- 
famed  town.  "  The  principle  which  governs  these  cases 
is,  that  the  citizens  of  foreign  states  who  resided  within 
the  arena  of  war  had  no  right  to  demand  compensation 
from  either  of  the  belligerents  for  losses  or  injuries  sus 
tained."  He  alluded  to  the  bombardment  of  Copen 
hagen,  as  an  historical  case  in  point* 

To  the  same  effect  was  Lord  Pahnerston's  answer  in 
the  House  of  Commons  to  the  inquiry  of  Mr.  Adams 
"whether  it  was  his  intention  to  introduce  any  measure 
enabling  Her  Majesty's  government  to  compensate 
British  merchants  whose  property  at  Uleaborg,  in  the 
Gulf  of  Bothnia,  had  been  destroyed  on  the  2d  of  June, 
1854,  by  the  boats  of  a  squadron  under  command  of 
Admiral  Plumridge."  After  referring  to  his  decision 
in  the  case  of  Greytown,  he  said  "  that  the  British  sub 
jects  holding  property  at  Uleaborg  had  had  such  prop 
erty  destroyed  by  hostile  movements  of  the  British 
navy  against  the  Russians;  but  that  they  must  take 
their  chance  of  the  protection  of  the  Russian  empire : 
and  if  the  place  where  their  property  was  situated 
became  the  scene  of  hostile  operations,  no  claim  could 
possibly  be  set  up  by  these  persons,  whatever  country 

*  See  Hansard,  Parl.  Deb.  3d  Series,  vol.  cxlvi.  pp.  37,  49.    Debate  iu  H.  of  Com.,  June 
19,  1857. 


HOSTILE   ALIENS.  337 

they  might  belong  to,  against  the  government  whose 
forces  carried  on  the  hostilities  by  which  they  had  been 
made  to  suffer."  * 

"By  the  law  of  nations  all  the  subjects  of  an  offend 
ing  power,  whether  they  are  natural  born  subjects  or 
persons  who  have  acquired  a  domicile  in  his  territory 
by  long  residence  therein,  are  liable  in  their  persona 
and  their  property  to  the  operation  of  reprisals  made 
against  that  power  ;  but  individuals  who  may  be 
only  temporarily  resident  in  the  country,  or  travelling 
through  it,  do  not  thereby  incur  any  liability  to  re 
prisals;  for  the  liability  to  undergo  reprisals  is  as  it 
were  a  liability  to  share  the  burden  of  a  public  debt  to 
which  those  are  not  liable  who  are  subject  to  the  laws 
of  a  country  only  for  a  time."  f 

1.  Aliens  engaged  in  active }  hostilities  against  the 
United  States,  or  in  aiding  the  rebellion,  forfeit  all 
rights  as  neutrals,  and  are  subject  to  be  treated  as 
alien  enemies,  according  to  the  law  of  nations.  More 
over,  by  associating  themselves  with  rebels,  they  violate 
certain  acts  of  Congress,  and,  if  convicted,  incur  the 
penalties  therein  provided.  The  allegiance  they  owe 
to  a  foreign  government  wall  shelter  them  from  con 
demnation  or  punishment  under  our  laws  against  trea 
son,  but  cannot  protect  them  in  committing  offences 
against  other  statutes.  The  rebel  flag  will  be  no  safe 
guard  to  the  hostile  foreigner  who  slaughters  and  plun 
ders  the  citizens  and  subjects  of  a  country  with  which 

*  See  Hansard,  Parl.Deb.,  June  17,  1857,  vol.  cxlvi.  p.  1045. 

*  Twiss,  Law  of  Nations,  vol.  i.  p.  38.    Grotius  de  Jure  Belli,  L.  III.  c.  2,  §  7.    It  was 
decided  in  1853  by  a  joint  commission,  to  which  was  referred  the  claims  of  Laurent  and 
other  Europeans  who  were  in  Mexico  when  Gen.  Scott  invaded  that  country,  and  who 
demanded  damages  for  losses  occasioned  by  the  American  army,  that  when  a  foreigner 
holds  real  estate  in  a  country  he  identifies  himself  with  the  fortunes  of  the  citizens  of 
that  country,  in  peace  or  war,  and  must  abide  all  consequences. 

43 


338  WAR    CLAIMS    AGAINST    THE   UNITED    STATES. 

his  own  sovereign  is  on  terms  of  friendship  or  neutral 
ity.  If  his  body  be  mutilated,  or  if  his  property  be 
captured  or  destroyed  in  the  regular  prosecution  of 
hostilities,  he  can  have  no  moral  or  legal  claim  for 
indemnity  against  the  government  which  he  has  at 
tempted  to  overthrow.  He  must  share  the  misfortunes 
of  those  with  whom  he  has  voluntarily  associated  him 
self,  and  must  blame  his  own  folly  or  wickedness  for 
all  the  evils  he  may  have  to  endure.  No  foreign  coun 
try,  which  claims  to  be  neutral  or  friendly^  to  the 
United  States,  can  lawfully  afford  protection  against 
the  hazards  of  war  to  its  citizens  who  have  taken  up 
arms  against  us.  Such  hostile  foreigners,  being  our 
enemies,  can  look  for  indemnification  only  to  that  pre 
tended  or  de  facto  government  in  whose  service  they 
have  enlisted.* 

2.  Aliens  who  have  been  naturalized  under  the 
laws  of  the  United  States  have  become  citizens,  and 
are  by  statute  entitled  to  nearly  the  same  rights,  and 
are  charged  with  the  same  duties,  as  native  born  citi 
zens^  although  they  are  (by  the  12th  Amendment  of 
the  Constitution)  not  eligible  as  Presidents  or  Yice- 
Presidents.  But  if  a  foreigner,  resident  in  this  country, 
has  not  been  naturalized  according  to  law,  his  personal 
status  will  continue  to  be  that  of  an  alien,  "  and  if  war 
should  arise  between  his  native  country  and  the  coun 
try  in  which  he  has  established  himself,  his  personal 
relation  with  the  latter  country  will  be  that  of  an  alien 
enemy  r  J 

It  is  not  necessary  to  consider  the  rights  of  aliens 
who  have  become  our  enemies,  or  of  those  who  have 

*  See  Solicitor's  Opinions,  Nos.  95,  357,  707,  713,  935. 
t  Act  H  April,  1802,  §  1. 
J  Twiss,  Law  of  Nations,  vol.  i.  p.  90. 


ALIENS  NATURALIZED, OR  NOT  NATURALIZED.    339 

renounced  allegiance  to  all  foreign  potentates,  since  no 
claims  on  their  behalf  are  likely  to  be  presented  by 
European  governments. 

3.  (#.)  Aliens  not  naturalized,  not  having  renounced 
their  allegiance  to  their  sovereigns,  if  they  have  at 
any  time  assumed  to  exercise  the  rights  of  an  American 
citizen  by  voting  at  any  election  held  under  the  author 
ity  of  the  laws  of  any  State  or  Territory,  or  of  the 
United  States,  or  if  they  have  held  any  office  under 
any  of  such  laws,  are  not  exempted  from  enrolment 
or  draft  under  the  provisions  of  the  acts  for  enrolling 
and  calling  out  the  national  forces,  and  the  act  amenda 
tory  thereof.  * 

The  LTWS  of  the  United  States  do  not  permit  for 
eigners  to  enjoy  the  privileges  without  incurring  the 
obligation  of  citizens  to  support  and  maintain,  against 
public  enemies,  that  government  in  the  administration 
of  which  they  have  voluntarily  participated.  Hence, 
whatever  loss  or  damage  to  person  or  property  may 
have  been  occasioned  by,  or  may  have  resulted  from, 
the  performance  of  this  duty,  does  not  lay  the  founda 
tion  for  any  claim  of  indemnification. 

3.  (#.)  Foreigners  not  naturalized,  and  not  coming 
within  this  exception,  being  friendly  or  neutral,  and 
having  committed  no  act  of  hostility  against  the  United 
States,  also  being  domiciled  in  the  loyal  portions  of 
the  country,  are  not  subject  to  do  military  duty,  nor  to 
have  their  property  taken  from  them,  nor  to  suffer 
unlawful  injury  to  their  persons  by  the  military  forces 
of  the  United  States  otherwise  than  if  they  were  citi 
zens;  yet  the  government  is  not  bound  to  give  their 

*  See  Act  3  March,  1863,  and  Act  24  Feb.,  1864.     Proclamation  of  the  President.  8  May, 
1863. 


340  WAR    CLAIMS    AGAINST    THE   UNITED    STATES. 

persons  or  their  property  more  protection  than  it  is 
required  by  law  to  give,  under  like  circumstances,  to 
its  own  subjects,  unless  otherwise  obligated  by  treaty 
stipulations.     The    Constitution    provides  that  private 
property  of  citizens  shall  not  be  appropriated  to  public 
use  without  just  compensation ;  but  this  provision  has 
no  application  to  the  capture  or  destruction  of  enemy's 
property  in  time  of  war,  whether  the  enemy  are  for 
eigners  or  citizens  of  the  United  States.     The  destruc 
tion  or  capture   of  the  property  of  loyal  citizens  by 
military  forces  invading  the    loyal  States,  is    not  an 
appropriation  of  property  by  our  government.      Nor 
are  we  bound  by  the  Constitution,  or  by  any  law  of 
Congress,  to  indemnify  our  own  citizens  for  losses  thus 
occasioned.     Still  less  clo  we   owe  such  indemnity  to 
foreigners.     But  if  the  private  property  of  loyal  citizens, 
inhabitants  of  loyal  States,  is  appropriated  by  our  military 
forces  for  the  purpose  of  supplying  our  armies,  and  to 
aid  in  prosecuting  hostilities  against  a  public  enemy, 
the  government  is  bound  to  give  a  reasonable  compen 
sation  therefor  to  the  owner ;  and  under  like  circum 
stances,  it  is  obligated  to   give  just  compensation   to 
neutral  foreigners.     But  property  of  such  citizens  and 
of  such  foreigners  may  be  destroyed  by  our  military 
forces,  under  certain  circumstances,  without  liability  to 
pay  for  it.     Thus,  if  one  of  our  armies  marches  across  a 
cornfield,  and  so  destroys  a  growing  crop,  or  fires  a 
building  which  conceals  or  protects  the  enemy,  or  cuts 
down  timber  to  open  a  passage  for  troops  through  a 
forest,  the    owner  of  such  property,  citizen   or    alien, 
has  no  legal  claim  to  have  his  losses  made  up  to  him 
by  the  United  States.     Misfortunes  like  these  must  be 
borne  wherever  they  fall.       If  any  government  is  obli- 


DOMICILE.  341 

gated  to  guarantee  its  subjects  against  losses  by  casual 
ties  of  public  war,  such  obligation  must  be  founded 
upon  some  constitutional  or  statute  law.  Thus  far  no 
such  obligations  have  been  recognized  in  our  system 
of  congressional  legislation. 

DOMICILE. 

In  examination  of  the  political  status  of  all  classes 
of  aliens,  it  will  be  necessary  in  nearly  every  case  to 
determine  the  question  of  domicile  of  the  claimant; 
and  it  may  be  convenient  here  to  define  the  meaning 
of  the  word  domicile,  as  now  understood  by  writers  on 
international  law. 

"  According  to  the  law  of  nations,  when  the  national 
character  of  a  person  is  to  be  ascertained,  the  first 
question  is,  In  tvhat  territory  does  he  reside,  and  is  he 
resident  in  that  territory  for  temporary  purposes,  or 
permanently  ?  If  he  resides  in  a  given  territory  per 
manently,  he  is  regarded  as  adhering  to  the  nation  to 
which  the  territory  belongs,  and  to  be  a  member  of  the 
political  body  settled  therein.  If  he  is  only  resident  in 
a  given  territory  for  temporary  purposes,  he  is  regarded 
as  a  stranger  thereto ;  and  a  further  question  must  then 
be  asked,  In  what  country  is  his  principal  establish 
ment,  and  ?6>/^r£,  when  he  has  returned,  does  he  consider 
himself  to  be  at  home  ?  The  country  which  satisfies 
the  conditions  implied  in  this  further  question  is  desig 
nated,  in  the  language  of  public  law,  the  domicile  of  the 
individual,  which  Vattel  defines  as  '  a  fixed  residence 
in  any  place  with  the  intention  of  always  remaining 
there.' "  * 

*  Twiss,  Law  of  Nations,  vol.  ii.  p.  233.    Grotius,  Droit  dcs  Gens,  L.  I.  §  217. 


342  WAR    CLAIMS    AGAINST    THE    UNITED    STATES. 

A  foreigner  may  have  his  personal  or  permanent 
domicile  in  one  country,  and  at  the  same  time  his 
constructive  or  mercantile  domicile  in  another.  The 
national  character  of  a  merchant,  so  far  as  relates  to  his 
property  engaged  in  trade,  is  determined  by  his  com 
mercial  domicile.*  "All  such  persons"  (viz.,  all  who 
have  become  subjects  of  the  sovereign  from  whom  an 
injury  has  been  received,  and  who  are  subjects  for  a 
permanent,  not  transitory  cause,  whether  natives  or 
citizens ;  and  all  who  came  to  reside  within  the  country 
of  a  belligerent  power  with  knowledge  of  the  existence 
of  war ;  and  all  who  came  into  the  country  before  the 
war,  and  continue  to  reside  there  after  the  commence 
ment  of  hostilities  for  a  longer  time  than  is  necessary 
for  their  convenient  departure)  "are  de  facto  subjects 
of  the  enemy  sovereign,  being  resident  within  his  ter 
ritory,  and  are  adhering  to  the  enemy  so  long  as  they 
remain  within  his  territory.  If,  however,  they  quit  the 
enemy's  territory  with  the  intention  of  abandoning  it, 
and  resuming  a  permanent  residence  in  the  country  of 
their  origin,  they  divest  themselves  of  the  hostile  char 
acter  at  once  upon  so  quitting  the  enemy's  territory."  -j- 

A  neutral,  or  a  citizen  of  the  United  States,  domi 
ciled  in  the  enemy's  country,  not  only  in  respect  to  his 
property,  but  also  as  to  his  capacity  to  sue,  is  deemed 
as  much  an  alien  enemy  as  a  person  actually  born  under 
the  allegiance  and  residing  within  the  dominions  of  the 
hostile  nation  ;  J  but  a  party's  putting  himself  in  itinere 

*  Halleck,  Int.  Law  and  Laws  of  War,  p.  714. 

t  1  Twiss,  L.  of  N.,  vol.  i.  p.  83. 

Since  the  publication  of  the  last  edition,  Congress  has  passed  the  Act  1808,  ch.  71  — 
which  provides  that  the  party  asserting-  the  loyalty  of  any  person  in  a  proceeding  in  any 
court  must  prove  it ;  and  that  voluntary  residence  in  rebel  States  is  prima  facie  evidence 
of  having  given  aid  and  comfort  to  the  rebellion. 

J  2  Gallison,  205,  Society  v.  Wheeler. 


ALIENS    DOMICILED    IN   THE   UNITED    STATES.  343 

to  return  to  his  native  country,  will  exempt  property 
from  a  hostile  character  acquired  by  residence  where 
such  property  has  been  engaged  in  a  trade  lawful  in 
the  native  character,  and  not  otherwise.* 

4.  In  relation  to  neutral  or  friendly  aliens  who  have 
acquired  a  permanent  personal  domicile  in  the  loyal 
States  before  or  during  the  war,  few  if  any  questions 
have  arisen ;  and  their  rights  are  so  well  defined  under 
the  settled  principles  of  international  law,  and  by  trea 
ties  of  friendship  and  commerce  between  the  United 
States  and  foreign  nations,  that  their  claims  to  protec 
tion  or  indemnity  require  no  especial  attention  at  the 
present  time ;  but  neutral  or  friendly  aliens,  who,  be 
fore  the  war  began,  had  acquired  a  permanent  personal 
domicile  in  the  States  declared  in  rebellion,  and  who 
did  not,  within  reasonable  time  after  the  commence 
ment  of  hostilities,  withdraw  from  those  States,  are 
by  that  law  held  to  be  public  enemies  of  the  United 
States  ;  themselves  and  their  property  are  liable  to  the 
same  treatment  as  the  persons  and  property  of  other 
public  enemies.*)" 

The  proclamations  of  the  President,  and  the  acts  of 
Congress  against  districts  of  country  engaged  in  rebel 
lion,  include  all  the  inhabitants  thereof,  without  exception, 
and  recognize  them  as  public  enemies.  J  One  of  these 
acts  expressly  refers  to  aliens.§ 

*  1  Gallison,  467,  The  St.  Lawrence.    Ibid.  614,  TJie  Francis. 

t  Twiss,  L.  of  N.,  vol.  i.  p.  82.     Grotius,  de  B.  et  P.,  L  III.  c.  2,  §  7. 

|  Act  of  Congress,  13  July,  1861,  ch.  3.  Proclamation,  6  Aug.  1861.  Proclamation, 
2  April,  1863. 

§  Act  July  2, 1864,  ch,  225,  sect.  4. 

By  this  act  it  is  provided  that  "the  prohibitions  and  provisions  of  the  act  approved 
July  13,  1861,  and  of  the  acts  amendatory  or  supplementary  thereto,  shall  apply  to  all 
commercial  intercourse  by  and  between  persons  residing1  or  being  within  districts  within 
the  present  or  future  lines  of  national  military  occupation  in  the  States  or  parts  of 
States  declared  in  insurrection,  whether  with  each  other  or  with  persons  residing  or  being 


344  WAR    CLAIMS  AGAINST    THE   UNITED    STATES. 

The  law  of  nations  fully  sanctions  such  legislation 
against  those  foreigners  who  prefer  to  take  their  chance 
under  the  rebel  government  rather  than  to  rely  on  the 
protection  of  their  lawful  sovereign,  and  to  entitle 
themselves  to  that  protection  by  withdrawing  from  the 
enemy's  country.  They  have  the  moral  and  legal  right 
to  remain  in  the  hostile  jurisdiction ;  but  so  remaining, 
they  must  take  the  hazards  of  the  community  with 
which  they  choose  to  cast  their  lot.  Their  continued 
residence  in  a  rebellious  district  lends  voluntary  aid 
and  countenance  to  the  enemies  of  the  Union  by  their 
presence,  and  by  their  property,  which  becomes  liable 
to  contribute,  ty  taxation  and  otherwise,  to  the  support 
of  the  rebellion.  The  means  of  carrying  on  war  are 
thus,  in  part,  supplied  by  those  aliens  who  continue  to 
associate  themselves  with  rebels.  Their  property,  found 
on  the  sea,  is  lawful  prize,  or  if  captured  on  land,  it  is 
lawful  capture.  It  is  not  material  to  ascertain  whether 
the  sentiments  or  conduct  of  aliens  so  domiciled  are 
hostile  or  friendly  towards  the  Union.  The  fact  of 
remaining,  without  effecting  a  removal  of  their  persons 
and  property  from  the  enemy's  country  within  reasona 
ble  time  after  the  commencement  of  hostilities,  is 
conclusive  evidence  that  they  are  to  be  deemed  in  law 
public  enemies.  If  the  government,  of  whom  they  are 
subjects,  has  recognized  a  state  of  civil  war,  and  has 
conceded  to  the  rebels  belligerent  rights,  all  such  sub 
jects  are  bound  by  the  act  of  their  government  to  elect 
either  to  withdraw  within  reasonable  time  after  such 
recognition  and  concession,  or  else  to  be  forever  after 


within  districts  declared  in  insurrection,  and  not  within  those  lines;  and  that  all  per 
sons  within  the  United  States,  not  native  or  naturalized  citizens  thereof,  shall  be  subject 
to  the  same  prohibitions  in  all  commercial  intercourse  with  inhabitants  of  States  or 
parts  of  States  declared  in  insurrection,  as  citizens  of  loyal  States  are  subject  to  under  said 
act  or  acts." 


ALIENS    HAVING    TEMPORARY    DOMICILE   HERE.  345 

estopped  from  making  any  claims  for  indemnity  other 
than  those  which  could  be  rightly  made  by  public  ene 
mies  of  the  United  States.* 

5.  Another  class  of  neutral  aliens  consists  of  those 
who,  at  the  commencement  of  the  war,  had  a  tempo 
rary  residence,  or  were  merely  travellers,  and  had  not 
acquired  a  permanent  personal  domicile  in  the  Confed 
erate  States.  As  travellers,  or  as  temporary  residents, 
they  had  the  right  to  retire  and  withdraw  their  prop 
erty  from  the  rebellious  districts.  They  were  bound  to 
do  so,  or  else  to  be  treated  as  public  enemies.  After 
the  war  began,  and,  perhaps,  after  their  own  govern 
ment  had  conceded  to  the  rebels  the  rights  of  belliger 
ents,  they  were  entitled  to  have  reasonable  time  in 
which  they  might  remove  from  the  country.  But  if  they 
remained,  and,  assuredly,  so  long  as  they  remained, 
after  the  expiration  of  that  time,  they  could  not,  and 
cannot,  complain  of  being  subject  to  the  same  treatment 
as  those  with  whom  they  have  chosen  to  associate. 
If  alien  denizens  of  the  Confederate  States  were  pre 
vented  from  leaving  the  country,  or  from  withdrawing 
their  property,  by  the  Confederate  government,  or  by 
any  persons  acting  under  their  authority,  these  aliens 
may  claim  indemnity  from  that  government,  if  it  can 
be  found ;  but  the  concession  of  belligerent  rights  to 
the  Confederates  by  a  foreign  country  estops  it  from 
making  any  claim  against  us  for  wrongs  inflicted  by 
our  public  enemies  upon  its  subjects  during  the  war. 

If  the  United  States  government,  by  any  law  or 
authorized  act  of  its  officers,  military  or  civil,  prevented 
the  exercise  of  the  right  of  the  alien  to  withdraw  from 

*  Since  the  publication  of  the  last  edition  of  this  essay,  the  principles  above  stated  have 
been  sanctioned  by  an  unanimous  decision  of  the  Supreme  Court  of  the  United  States  in 
the  case  of  The  Peterhoff,  5  Wallace,  CO,  180G-7.  See  also  The  Venice,  2  Wallace,  274. 

44 


346  WAR    CLAIMS   AGAINST   THE    UNITED    STATES. 

the  country  upon  an  authenticated  application  made 
by  such  alien  to  the  proper  authority,  and  if  injury  was 
suffered  in  consequence,  the  alien  is  entitled  to  indem 
nity.  Yet  an  alien  may  lose  his  right  to  indemnity  if 
he  violates  any  of  the  laws  of  war,  the  proclamations 
of  the  commander-in-chief  of  the  army,  or  the  acts  of 
Congress  which  regulate  intercourse  with  the  enemy. 
He  cannot  invoke  to  his  aid  laws  which  he  has  violated. 

6.  The  claims  to  indemnity  next  to  be  considered 
are  those  of  neutral  aliens  whose  mercantile  domicile 
was,  at  the  beginning  of  the  war,  in  the  Confederate 
States,  whatever  may  have  been  the  place  of  their 
personal  domicile. 

"In  general."  says  Wheaton,*  "the  national  char 
acter  of  a  person,  as  neutral  or  enemy,  is  determined  by 
that  of  his  domicile  ;  but  the  property  of  a  person  may 
acquire  a  hostile  character  independently  of  his  na 
tional  character,  derived  from  personal  residence.  Thus 
the  property  of  a  house  of  trade  established  in  the 
enemy's  country  is  considered  liable  to  capture  and 
condemnation  as  prize.  This  rule  does  not  apply  to 
cases  arising  at  the  beginning  of  a  war  in  reference 
to  persons  who,  during  peace,  had  habitually  carried 
on  trade  in  the  enemy's  country,  though  not  resident 
there,  and  are  therefore  entitled  to  withdraw  from  that 
commerce.  But  if  a  person  enters  into  a  house  of 
trade  in  the  enemy's  country,  or  continues  that  con 
nection  during  the  war,  he  cannot  protect  himself  by 
mere  residence  in  a  neutral  country"-^ 

*  P.  IV.  ch.  i.  sect.  19,  p.  573. 

f  1  Rob.  Adm.  Rep.  p.  1,  The  Vigilantia.  2  Ibid.  p.  255,  The  Susa.  3  Ibid.  p.  41,  The 
Portland.  5  Ibid.  p.  297,  The  Jonge  Klassina.  1  Wheaton's  Rep.  p.  159,  The  Antonia 
Johanna.  4  Ibid.  p.  105,  The  Friendschaft. 


ALIENS  HAVING  COMMERCIAL  DOMICILE  IN  UNITED  STATES. 347 

"A  naturalized  citizen,  for  the  purposes  of  trade, 
returned  to  his  native  country  in  time  of  peace,  but 
with  the  intention  of  coming  back  to  his  adopted 
country.  He  remained  in  his  native  country  twelve 
months  after  war  had  broken  out  between  the  two 
countries,  for  the  purpose,  of  closing  his  business 
(though  he  engaged  in  no  new  commercial  transactions 
with  the  enemy),  and  then  returned  to  his  adopted 
country.  It  was  held  by  the  court  that  he  had 
regained  a  domicile  in  his  native  country,  and  that  his 
goods,  captured  after  the  war,  were  liable  to  con 
demnation."*  The  property  of  all  the  partners  in  a 
trading  house  in  the  enemy's  country  is  lawful  prize, 
though  some  of  the  partners  have  a  neutral  residence. 
The  property  of  a  person  may  acquire  a  hostile  char 
acter  although  his  residence  be  neutral.f  The  consul 
of  a  neutral  state,  residing  and  trading  in  a  belligerent 
country,  is  domiciled  in  the  belligerent's  country,  and 
his  property  is  liable  to  capture  and  confiscation  even 
if  owned  in  partnership  with  other  neutrals.  J 

The  commercial  domicile  of  a  merchant  aNt  the  time 
of  the  capture  of  his  goods  determines  the  character  of 
those  goods.§  If  a  citizen  of  the  United  States  estab 
lishes  his  domicile  in  a  foreign  country,  between  which 
and  the  United  States  hostilities  afterwards  break  out, 
property  shipped  by  such  citizen  before  a  knowledge 
of  the  war,  and  captured  by  an  American  cruiser  after 
the  declaration  of  war,  must  be  condemned  as  lawful 
prize.\\  The  property  of  a  house  of  trade  established  in  an 

*  The  Francis,  8  Cranch  R.  355. 

t  The  St.  Indiana,  2  Gallis,  II.  268. 

|  Arnold  v.  U.  S.  Ins.  Co.,  1  Johns.  Cases,  363. 

§  TJie  Francis,  8  Cranch  R.  363. 

||  The  Venus,  1  Gallis.  11.  253. 


C\- 


348  WAR    CLAIMS    AGAINST   THE    UNITED   STATES. 

enemy's  country  is  condeinnable  as  prize,  whatever  may 
be  the  domicile  of  the  parties.*  Goods  which  appeared 
by  the  ship's  papers  to  be  a  consignment  from  alien 
enemies  to  American  merchants  were  condemned  in 
ioto  as  prize,,  although  farther  proof  was  offered  that 
American  merchants  VTQTQ  jointly  interested,  and  that  they 
had  a  lien  upon  the  goods,  in  consequence  of  advances 
made  by  them.f  A  foreign  merchant,  domiciled  in 
the  country  of  the  enemy,  is  himself  an  enemy  in 
the  same  sense  and  to  the  same  extent  as  a  native 
subject.  J 

"  The  national  character  of  the  political  agent  of  a 
neutral  state,  who  is  resident  in  a  belligerent  country, 
is  not  affected  by  such  residence,  whatever  may  have 
been  the  duration  of  such  residence  ;  but  it  is  otherwise 
with  a  commercial  agent.  A  consul  does  not  participate 
in  the  privilege  of  extraterritoriality,  which  a  political 
enemy  enjoys;  and  if  he  is  personally  engaged  in 
the  commerce  of  a  belligerent  country,  his  consular 
character  affords  no  protection  to  his  mercantile  ad 
ventures."  § 

The  belligerent  rights  of  the  United  States  against 
the  property  of  an  alien  merchant  are  determined  by 
the  hostile  or  neutral  character  of  the  place  where  his 
trade  is  carried  on.  Neutral  aliens,  not  naturalized, 


*  The  Friendschaft,  4  Wheat.  R.  105.     The  Antonia  Joanna,  1  Wheat  R.  169. 

t  The  Francis,  8  Craneh  R.  335. 

J  3  Phillmore,  Int.  Law,  §  85.  1  Duer  on  Insurance,  523.  4  Rob.  Rep.  119,  Anna 
Catherina.  3  Ibid.  41,  The  Portland.  1  Ibid.  14,  The  Nancy.  4  Wheat.  107,  The  Friends- 
chaff.  2  Gallis.  268,  The  San  Jose  Indiana.  Halleck  on  Int.  Law,  721. 

§  1  Twiss,  315.  Lord  Stowell's  opinion  in  Concordia,  Lords,  5  Feb.,  1782.  Het.  Huys, 
Lords,  16  July,  1784.  The  Pigou,  Lords,  18  July,  1797.  The  Orion,  Admiralty  Court, 
24  March,  1797.  The  Sarah  Christina,  1  Rob.  Chan.  238. 


NEUTRAL    OR   FRIENDLY    ALIENS.  349 

and  not  having  exercised  any  of  the  rights  of  citizen 
ship,  whether  domiciled  in  the  United  States,  or  only 
carrying  on  trade  here  at  the  beginning  of  the  war, 
are  entitled  to  withdraw  themselves  and  their  property 
into  another  country  within  a  reasonable  time  after 
hostilities,  have  been  commenced.  If  they  do  not  thus 
withdraw,  they  are  liable  to  be  treated,  so  far  as  relates 
to  their  property,  as  alien  enemies,  and  as  subjects  of 
the  hostile  government  de  facto  under  whose  dominion 
they  have  carried  on  their  trade. 

To  the  right  of  neutral  or  friendly  aliens  to  with 
draw  property  from  the  enemy's  country,  there  are 
some  limitations.  The  produce  of  an  enemy's  territory  is 
to  be  considered  hostile  property  so  long  as  it  belongs 
to  the  oiuner  of  the  soil,  whatever  may  be  his  national 
character  in  other  respects,  or  whatever  may  be  his 
place  of  residence.  This  exception  to  the  general  rule 
is  well  established  in  the  courts  of  England  and  of  the 
United  States.* 

"  Certainly  nothing  can  be  more  decided  and  fixed," 
said  Sir  William  Scott,  in  pronouncing  judgment  in  the 
case  of  The  Phoenix,  "  as  a  principle  of  this  court  and  of 
the  Supreme  Court  upon  very  solemn  argument  there, 
than  that  the  possession  of  the  soil  does  impress  upon 
the  owner  the  character  of  the  country  so  far  as  the 
produce  of  that  plantation  is  concerned,  in  its  trans 
portation  to  any  other  country,  whatever  the  local 
residence  of  the  owner  may  be.  This  has  been  so 
repeatedly  decided,  both  in  this  and  the  Superior  Court, 
that  it  is  no  longer  open  to  discussion.  No  question 

*  The  Venus,  1  Cranch,  8,  p.  253.     The  Phoenix,  Robinson's  Admiralty  K.  V.  p.  21. 
The  Vrou  Anna  Catharina,  V.  Rob.  Adm.  R.  1(57. 


350  WAR    CLAIMS    AGAINST    THE   UNITED    STATES. 

can  be  made  upon  the  point  of  law  at  this  day."  "  It 
cannot  be  doubted/'  says  the  same  judge,  in  the  Anna 
Catharina,  "  that  there  are  transactions  so  radically  and 
fundamentally  national  as  to  impress  upon  them  the 
national  character,  independent  of  peace  or  war,  and  the 
local  residence  of  the  parties.  The  produce  of  a  per 
son's  own  plantation  in  the  colony  of  the  enemy,  though 
shipped  in  time  of  peace,  is  liable  to  be  considered  the 
property  of  the  enemy,  by  reason  that  the  proprietor 
has  incorporated  himself  with  the  permanent  interests 
of  the  nation  as  a  holder  of  the  soil,  and  is  to  be  taken 
as  a  part  of  that  country,  in  that  particular  transaction, 
independent  of  his  own  personal  residence  and  occu 
pation." 

The  Supreme  Court  of  the  United  States  *  has  con 
firmed  and  extended  this  doctrine.  In  the  case  referred 
to,  the  claimant,  a  Dane,  owned  a  plantation  in  Santa 
Cruz.  That  island,  then  belonging  to  Denmark,  was 
captured  and  held  by  Great  Britain  for  a  time.  The 
claimant  withdrew  from  it  at  the  date  of  its  surrender, 
and  returned  to  his  native  country.  While  he  was  still 
in  Denmark,  his  agent  at  Santa  Cruz  shipped  a  cargo 
of  sugar,  which  was  the  produce  of  his  plantation, 
and  it  was  captured  at  sea  by  a  United  States  cruiser 
as  enemy  property,  during  our  last  war  with  England. 
Although  Denmark  was  a  friendly  power,  and  the 
claimant  was  also,  so  far  as  appears,  well  disposed 
towards  the  United  States,  the  sugar,  being  the  prod 
uce  of  a  plantation  in  an  island  which,  at  the  time 
of  shipment,  was  in  the  actual  possession  and  control 
of  England,  then  our  enemy,  was  held  to  be  lawful 
prize  of  war,  and  was  condemned  as  such. 

*  Thirty  Hogsheads  of  Sugar,  Beiizon,  claimant,  9  Cranch.  K.  191-199. 


OPINIONS    OF   THE   SUPREME   COURT.  351 

"  The  opinion,"  says  the  Court,  "  that  the  ownership 
of  the  soil  does,  in  some  degree,  connect  the  owner 
with  the  property,  so  far  as  respects  that  soil,  was  an 
opinion  which  prevailed  very  extensively.  It  was  not 
an  unreasonable  opinion.  Personal  property  may  fol 
low  the  person  anywhere ;  and  its  character,  if  found 
on  the  ocean,  may  depend  on  the  domicile  of  the  owner. 
But  land  is  fixed.  Wherever  the  owner  may  reside, 
that  land  is  hostile  or  friendly  according  to  the  con 
dition  of  the  country  in  which  it  is  placed.  It  was  no 
extravagant  perversion  of  principle,  nor  was  it  a  violent 
offence  to  the  course  of  human  opinion,  to  say,  that  the 
proprietor,  so  far  as  respects  his  interest  in  the  land, 
partakes  of  its  character,  and  that  its  produce,  while 
the  owner  remains  unchanged,  is  subject  to  the  same 
.  disabilities."  * 

An  act  of  the  Congress  of  the  Confederate  States, 
approved  May  6,  1861,  recognized  and  declared  war 
with  the  United  States,  and  authorized  the  use  of 
ill  their  land  and  naval  forces,  and  the  issue  of  letters 
of  marque  and  reprisal.  By  an  act  approved  Au 
gust  8,  1861,  all  citizens  not  acknowledging  the  au 
thority  of  the  Confederate  government,  with  certain 
exceptions,  were  ordered  to  depart  from  the  Confeder 
ate  States,  and  were  declared  public  enemies.~[ 

The  Judges  of  the  Supreme  Court  of  the  United 
States,  in  the  recent  case  of  the  Hiawatha  and  other 
prize  cases,J  having  unanimously  agreed  in  the  opinion 


*  Whenton's  Int.  Law,  Part  IV.  chap.  i.  §  21. 

f  Statutes  of  the  Provisional  Congress,  pp.  100,  101 .     Acts  of  the  Provisional  Congress, 
chap.  19,  p.  174. 
t  2  Black's  S.  C.  Rep.  638.    For  analysis  of  these  opinions,  see  pp.  238-243. 


352  WAR    CLAIMS   AGAINST   THE   UNITED    STATES. 

that  the  districts  of  country  declared  by  the  proclama 
tions  of  the  President  to  be  in  rebellion,  and  which 
were  included  in  the  non-intercourse  act  of  July  13, 
1861,  were,  after  the  passage  of  that  act,  to  be  treated 
by  the  courts  as  engaged  in  civil  war,  and  that  the  in 
habitants  thereof  were  public  enemies  of  the  United 
States,*  and  were  liable  to  all  the  disabilities  of  belli 
gerent  enemies,  it  follows  that  the  principles  of  law  as 
above  stated  inter  gentes,  equally  apply  to  our  civil  waivj* 
Hence  no  neutral  or  friendly  alien,  whatever  his  domi 
cile  during  the  war,  has  the  right  to  claim  indemnity 
for  the  capture  or  destruction,  by  the  forces  of  the 
United  States,  of  property  which  was  the  produce  of  his 
own  plantations  in  any  district  of  the  country  which 
was  declared  in  rebellion ;  nor  has  he  any  right  to  with 
draw  that  property  from  the  belligerent  country,  unless 
by  virtue  of  express  treaty  stipulations,  or  special  au 
thority  granted  to  him  in  pursuance  of  the  laws  of  the 
land. 

Provision  has  been  made  by  treaties  between  the 
United  States  and  some  foreign  nations,  whereby,  in 
case  of  war  breaking  out  between  the  two  nations,  it  is 
stipulated  that  merchants  of  either  nation,  in  the  towns 
or  cities  which  they  inhabit,  should  be  allowed  six 
months  after  the  declaration  of  war,  to  collect  and 
transport  their  merchandise ;  and  that,  should  they  suffer 

*  For  an  examination  of  the  cases  on  this  subject,  and  the  action  of  all  departments 
of  our  government,  see  Military  Government,  pp.  290-306. 

t  The  decision  that  the  inhabitants  of  those  parts  of  the  country  which  have  been 
declared  in  rebellion  are,  by  the  laws  of  war  and  under  the  Constitution  and  laws  of  the 
United  States,  public  enemies,  rests  upon  the  authority  of  the  political  departments  of  our 
government.  That  decision  is  binding  on  the  judiciary,  whose  duty  is  to  recognise  and 
conform  to  it.  That  duty  has  been  honorably  performed  by  the  Judges  of  the  Supreme 
Court  in  the  above-cited  cases,  in  which  they  decide  whether  certain  ships  and  cargoes 
were  or  were  not  lawful  prizes. 


RIGHTS    AND    DUTIES   OF   ALIENS.  353 

any  damage  or  injury  in  the  mean  while,  at  the  hands 
of  the  citizens  or  subjects  of  either  of  the  contracting 
parties,  they  should  have  full  and  entire  satisfaction. 
As  this  privilege,  which  is  deemed,  by  some  authorita 
tive  writers  on  international  law,  a  right  by  the  com 
mon  law  of  war,  is  conceded  to  certain  foreigners 
when  their  country  is  in  open  hostility  to  the  United 
States,  it  would  be  inconsistent  to  refuse  that  right  or 
privilege  to  the  same  foreigners,  if,  while  preserving 
neutrality  towards  us,  they  should  be  overtaken  by  a 
civil  war  in  the  United  States.  A  violation  of  this 
privilege  by  the  government,  or  by  any  persons  act 
ing  under  its  authority,  should  be  followed  with  prompt 
and  full  indemnity.* 

"  Aliens  residing  in  belligerent  districts ;  non-com 
batants,  whether  neutral,  friendly,  or  hostile ;  persons 
engaged  in  hostility ;  persons  belonging  to  the  invading 
country,  and  accompanying  the  army,  —  are  alike 
within  the  jurisdiction  of  military  government,  and  of 
military  courts  duly  established  therein."  f 

Aliens,  who  are  subjects  of  a  foreign  government, 
having  voluntarily  enlisted  in  the  service  of  the  United 
States  as  substitutes  for  drafted  men,  are  not  entitled 
to  be  discharged  from  such  service  by  reason  of  alien 
age  ;  but  may,  under  the  law  of  nations,  be  held  to 
perform  their  engagements,  without  giving  the  govern 
ment  to  whom  their  allegiance  is  due,  just  cause  of 
complaint.J 

*  See  treaty  between  the  United  States  and  France,  5  Feb.,  1778. 

t  Military  Government,  p.  318. 

J  See  Opinion,  Ko.  448  (p.  374),  in  the  case  of  deserters  from  a  French  corvette, 
who  were  enlisted  as  substitutes,  and  whose  discharge  was  claimed  by  the  French 
consul. 

45 


354  WAR   CLAIMS    AGAINST   THE   UNITED    STATES. 

"Service  in  the  rebel  army  by  an  alien  does  not 
deprive  him  of  the  benefit  of  the  plea  of  alienage  against 
any  claim  of  this  government  for  military  service. 
The  volunteering  of  an  alien  in  the  army  of  the  United 
States  to  serve  for  a  given  period,  subjects  him  to  all 
the  rules  and  regulations  of  the  military  service  during 
the  term  of  his  enlistment.  After  his  contract  of  enlist 
ment  has  expired  he  still  has  the  rights  of  alienage 
against  the  United  States.  The  proclamation  (of  neu 
trality)  of  the  Queen  gives  the  United  States  no  rights 
over  British  subjects,  though  its  violation  subjects  them 
to  the  penalties  of  British  laws,  and  to  those  of  the 
laws  of  war."  * 

u  Persons  who  reside  in  a  country  engaged  in  active 
hostilities,  and  who  so  conduct  themselves  as  to  give 
reasonable  cause  to  believe  that  they  are  aiding  and 
comforting  a  public  enemy,  or  that  they  are  partici 
pating  in  any  of  those  proceedings  which  tend  to  em 
barrass  military  operations,  may  be  arrested ;  and  if 
such  persons  shall  be  arrested  and  imprisoned  for  the 
purpose  of  punishing  or  preventing  such  acts  of  hos 
tility,  they  are  not  entitled  to  claim  indemnity  for  the 
injury  to  themselves  or  to  their  property,  suffered  by 
reason  of  such  arrest  and  imprisonment.  If  the  persons 
so  arrested  are  the  subjects  of  a  foreign  government, 
they  cannot  lawfully  claim  indemnity,  because  their 
own  hostile  conduct,  while  it  has  deprived  them  of  the 
shelter  of  neutrality,  has  subjected  them  to  penalties  for 
having  violated  the  laws  of  war.  If  a  foreigner  join 
the  rebels,  he  exposes  himself  to  the  treatment  of  rebels. 

*  See  Opinion,  No.  433,  p.  374.  See  also  Wilson  v.  Izard,  1  Paine,  08.  Juando  v. 
Taylor,  2  lb.  C52;  also,  contra,  Judge  Conkling's  Opinion  in  Matter  of  Ross  (Record 
er's  Court  of  Buffalo,  1842).  Opinions  of  the  Attorney  General,  vol.  iv.  p.  350. 


FOREIGNERS   NOT  ENTITLED    TO    INDEMNITY.  355 

He  can  claim  of  this  government  no  indemnity  for 
wounds  received  in  battle,  or  for  loss  of  time  or  suffer 
ing  by  being  captured  and  imprisoned.  It  can  make 
no  difference  whether  his  acts  of  hostility  to  the  United 
States  are  committed  openly  under  a  rebel  flag,  or 
secretly  in  the  loyal  States,  where  his  enmity  is  most  dan 
gerous.  If  it  be  said  that  he  has  violated  no  municipal 
law,  and  therefore  ought  not  to  be  deprived  of  liberty 
without  indemnity,  it  must  be  remembered  that  if  he 
has  violated  any  of  the  laws  of  war,  he  may  have  there 
by  committed  an  offence  more  dangerous  to  the  country, 
and  more  destructive  in  its  results,  than  any  crime 
defined  in  statutes." 

"  If  a  person  detained  in  custody  in  consequence  of 
having  violated  the  laws  of  war,  and  for  the  purpose 
of  preventing  hostilities,  be  liberated  from  confinement 
without  having  been  indicted  by  a  grand  jury,  it  does 
not  follow  therefrom  that  he  has  committed  no  crime. 
He  may  have  been  guilty  of  grave  offences,  while  the 
government  may  not  have  deemed  it  necessary  to 
prosecute  him.  Clemency  and  forbearance  are  not  a 
just  foundation  for  a  claim  of  indemnity.  An  offender 
may  not  have  been  indicted,  because  the  crime  com 
mitted,  being  purely  a  military  crime,  or  a  crime  against 
martial  law,  may  not  have  come  within  the  jurisdiction 
of  civil  tribunals.  In  such  a  case,  the  arrest  and  im 
prisonment,  founded  on  martial  law,  justified  by  mili 
tary  necessity,  cannot  be  adjudicated  by  civil  tribunals. 
If  the  person  so  arrested  is  the  subject  of  a  foreign 
power,  and  claims  exemption  from  arrest  and  custody 
for  that  reason,  he  can  have  no  right  to  indemnity  under 
any  circumstances  by  reason  of  being  an  alien,  until  the 
fact  of  his  alienage  is  made  known  to  the  government. 


356  WAR    CLAIMS    AGAINST   THE   UNITED    STATES. 

His  claim  to  indemnity  thereafter  will  depend  on  a  just 
application  of  the  principles  already  stated."  * 

When  a  claim  of  a  foreigner  is  presented  for  exam 
ination,  it  may  be  found  useful  to  make  investigation 
upon  the  following  questions  :  — 

1.  What  is  the  proof  that  the  claimant  is,  in  fact,  an 
alien  ? 

2.  Was  the  injury  complained  of  caused  by  the  war 
like  operations  of  the  Union  army  or  navy  ? 

3.  Whether  he  has  given  any  aid  and  comfort  to 
the  enemy? 

4.  Whether  he  has  been  naturalized,  or  has  taken 
the  initial  steps  for  that  purpose  ?  f 

5.  Whether  he  has  exercised  the  elective  franchise 
in  any  State,  or  in  the  United  States  ? 

6.  Whether  he  has  acquired  a  domicile  in  the  Confed 
erate  States? 

7.  If  not,  whether  he    had  a  temporary  residence 
there,  and  whether  he  withdrew  himself  and  his  prop 
erty,  or  attempted  to  do  so,  within  reasonable  time  ? 
And  if  he  failed  to  do  so,  whether  his  failure  was  caused 
by  the  act  of  the  United  States,  or  of  those  acting  by 
authority  thereof? 

8.  Whether  he  had  a  mercantile  domicile,  or  a  house  of 
trade.,  in  the  enemy's  country  ? 

9.  Whether  the  property  claimed  was  the  produce 
of  land  owned  by  the  claimant  in  the  hostile  districts  ? 

*  Military  Arrests,  pp.  211,  212,  10th  edition.  See  Opinion,  No.  357,  in  the  case  of  Cap 
tain  Sherwin,  a  subject  of  England,  p.  305.  Ibid.,  ]S'o.  362,  in  the  case  of  Theodore 
Moreau,  a  subject  of  France,  p.  3(58. 

t  By  proclamation  8  May,  1803  President  Lincoln  disallowed  the  plea  of  alienage  to  all 
foreigners  who  were  enrolled  among  the  military  forces  of  the  United  States,  if  they 
were  of  lawful  age  for  such  service,  and  had  made  the  usual  preliminary  oaths  for  nat 
uralization,  and  who  should  be  found  within  the  States  after  sixty  days,  or  had  exer 
cised  any  political  franchise  under  our  laws. 


TEST    QUESTIONS    ON    EXAMINATION.  357 

10.  Has  the  claimant  violated  any  law  of  the  United 
States,  having  reference  to  his  own  conduct,  or  to  the 
property  in  question  ? 

11.  Is  there  any  treaty  between  the  United  States 
and  the  country  to  which  the  claimant  owes  allegiance, 
whereby  the  claimant's  rights  are  excepted  from  the 
general  law  of  nations  and  of  war  ? 

12.  Is  there  any  statute  of  the  United   States  au 
thorizing  compensation  to  aliens  for   the  injury  com 
plained  of? 

13.  Is  there  any  appropriation  of  money  applicable 
by  law  to  the  satisfaction  of  the  claim  proposed  ? 


OPINIONS. 


[THE  following  opinions,  prepared  by  the  author  while  Solicitor  of  the  "War  Depart 
ment,  have  been  extracted  from  the  records  of  his  office,  and  are  now  added  as  illustra 
tions  of  the  application  of  some  of  the  principles  stated  in  the  essay  on  War  Claims.] 


[No.  36.] 

HARSBERG  &   STEIFEL, 

Claimants  for  the  value  of  400  barrels  of  flour  captured  by  our  troops  at 
Fredericksburg,  and  alleged  to  belong  to  that  firm. 

OPINION. 

Military  supplies,  provisions,  &c.,  have  been  frequently  captured  by  our 
troops  in  insurrectionary  districts,  and  used  for  the  support  of  the  army. 
Such  supplies,  whether  the  property  of  loyal  men  or  of  the  enemy,  are  con 
traband  of  war,  and  are  subject  to  lawful  capture. 

Whether  the  claimants,  if  loyal,  are  entitled  to  indemnity  or  not  is  not 
now  material,  because,  no  appropriation  having  been  made  by  Congress  for 
payment  of  such  indemnity,  this  Department  has  no  authority  to  allow  or 
pay  the  same. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
April  20,  1863. 

[No.  55.] 
J.  W.  SEAVER, 

Petitioner  for  an  order  allowing  him  to  collect  a  debt  of  $32,000  from 
L.  N.  Lane,  of  New  Orleans,  a  registered  enemy  of  the  United  States. 

OPINION. 

The  owner  of  the  property  comes  within  the  provisions  of  the  6th  and  7th 
sections  of  the  Act  of  July  17,  1862,  ch.  195. 

(358) 


OPINIONS.  359 

In  this  case,  it  is  the  duty  of  the  President  to  seize  such  property,  and  by 
proceedings  in  rem  to  have  it  converted  into  money  and  paid  over  to  the 
Treasurer  of  the  United  States. 

There  is  no  provision  in  the  Act  saving  the  rights  of  creditors ;  but  all 
conveyances  made  against  the  express  provisions  of  this  Act  are  void  in 
law.  A  conveyance  such  as  is  requested  would  be  void.  The  Secretary  has 
no  power  to  set  aside  an  Act  of  Congress,  and  cannot  sanction  such  convey 
ance,  however  strong  the  equity  of  the  case  may  be. 

The  precedent  would  be  a  dangerous  one,  even  if  the  law  would  sanction 
it,  as  the  door  would  be  open  to  innumerable  frauds  and  evasions  of  the 
confiscation  laws. 

The  remedy  of  the  petitioner  is  by  application  to  Congress. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

March  6,  1863. 

[No.  88.] 
A.  KERNAHAN. 

The  Hon.  Secretary  of  State  enclosed  letter  of  Lord  Lyons  relative  to  the 
claim  of  A.  Kernahan,  a  British  subject,  for  property  seized  by  order  of 
General  Butler. 

MEMORANDUM. 

Kernahan  appears  to  have  aided  and  abetted  the  enemy  in  several  ways, 
and  to  have  forfeited  all  claim  to  be  treated  as  a  neutral  British  subject. 
(Signed)  W.  W. 

[No.  95.] 

Claim  against  Confiscated  Property. 
W.  &  C.  K.  HERRICK. 

Claimants  against  the  confiscated  property  of  Bloomfield  &  Steel,  of  New 

Orleans. 

OPINION. 

I  am  not  aware  of  any  provision  of  the  Statutes  of  the  United  States 
which  would  authorize  you,  as  creditors  of  Bloomfield  &  Steel,  to  recover 
your  claims  from  the  United  States  out  of  the  proceeds  of  the  property  of 
such  debtors  after  it  has  been  lawfully  confiscated. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
April  18,  1863. 

See  letter  to  Herrick  of  April  18. 


360  OPINIONS. 


[No.  117.] 
CLAIM  FOR   CORN  CONDEMNED. 

Claim  of  H.  H.  Thompson  for  proceeds  of  5607  bushels  of  corn  con 
demned  as  lawful  prize,  and  forfeited  to  the  United  States. 

By  Samuel  H.  Treat,  District  Judge,  Southern  District,  Illinois. 
Lawrence  Weldon,  Esq.,  District  Attorney. 

OPINION. 

It  appears  from  the  papers  in  this  case,  that  "  in  an  expedition  sent  out 
through  Southeastern  Missouri,  our  troops  captured  a  quantity  of  corn,  as 
property  of  a  rebel  (one  Shelby  Thompson) ;  that  H.  H.  Thompson,  the 
claimant,  was  captured  as  a  rebel,  having  been  caught  near  the  same  place 
in  which  the  corn  was  seized,  and  which  belonged  to  a  relative  of  his,  then 
in  the  rebel  service. 

The  corn  was  appropriated,  as  is  usual  in  such  cases,  to  the  use  of  the 
army.  Subsequently,  on  the  22d  October,  1861,  an  information  appears  to 
have  been  filed,  in  the  District  Court  of  the  United  States  for  the  Southern 
District  of  Illinois,  against  this  corn,  by  Lawrence  Weldon,  District  At 
torney  of  the  United  States  for  that  district ;  and  it  appears  that  the  Mar 
shal  of  the  United  States  had  attached  5607  bushels  of  corn  (presumed  to 
be  the  same),  upon  process  issued  in  pursuance  of  said  libel. 

How  the  corn  came  to  be  removed  from  Missouri  into  Illinois  does  not 
appear ;  but  it  is  probable  that  it  was  transported  thither  by  the  captors, 
and  was  used  by  them  as  part  of  their  military  supplies. 

The  legal  proceedings  in  this  case  are  presumed  to  have  been  instituted 
under  the  provisions  of  the  "  Act  to  confiscate  property  used  for  insur 
rectionary  purposes,"  approved  August  6,  1861. 

Whether  the  property  captured  came  within  the  provisions  of  that  Act 
is  not  shown  upon  the  evidence,  as  it  does  not  appear  that  the  owner  of 
the  corn,  though  himself  a  rebel,  purchased,  sold,  kept,  used  or  employed 
it  for  the  purpose  of  aiding  the  rebellion,  or  the  rebels. 

It  appears  that  the  corn  was  found  on  the  farm  where  it  was  or  might 
have  been  raised,  and  for  all  that  appears,  it  may  have  been  the  intention 
of  the  owner  to  prevent  its  being  used  by  rebels,  or  in  aid  of  the  rebellion. 

That  the  property  was  lawfully  captured,  on  other  grounds  and  by  other 
authority  than  that  claimed  in  this  statute,  is  not  material  to  the  rights  of 
this  claimant,  who  can  maintain  his  claim  only  under  this  statute. 

The  next  question  is  as  to  the  claim  of  H.  H.  Thompson. 

He  was  arrested  as  a  rebel,  but,  though  discharged,  there  is  no  evidence 
of  his,  loyalty. 

The  information  was  filed  by  the  United  States  Attorney,  in  accordance 


OPINIONS.  361 

with  the  3d  section  of  the  Act  above  cited,  which  provides,  "  That  the  At 
torney-General,  or  any  District  Attorney  of  the  United  States  in  which  said 
property  may  at  the  time  be,  may  institute  the  proceedings  of  condemna 
tion,  and  in  such  case  they  shall  be  wholly  for  the  benefit  of  the  United 
States.  Or  any  person  may  file  an  information  with  such  Attorney,  in 
which  case  the  proceedings  shall  be  for  the  use  of  such  informer  and  the 
United  States  in  equal  parts." 

There  is  no  provision  in  this  Act  for  the  substitution  of  an  informer 
for  the  Attorney  of  the  United  States  after  an  information  has  been  filed, 
and  a  fortiori  after  condemnation. 

The  Attorney  of  the  United  States  must  be  presumed  to  have  intended  to 
perform  his  official  duty  in  filing  the  information  as  required  by  law.  By 
what  right,  after  condemnation,  the  Court,  or  Attorney  of  the  United  States, 
have  allowed  a  new  party  to  be  introduced  into  the  record,  and  thereby  to 
allow  him  to  deprive  the  United  States  of  one  half  of  the  value  of  the 
property  captured  and  condemned,  does  not  appear ;  and  when  it  is  more 
than  suspicious  that  the  claimant  is  himself  disloyal,  the  whole  transaction 
is  such  as  to  require  explanation  on  the  part  of  the  presiding  Judge  and 
the  Attorney  for  the  United  States. 

It  is  obvious  that  when  enemy's  property  is  captured  on  land,  the  title 
of  the  United  States  thereto  is  completed  by  capture  itself,  without  legal 
proceedings.  This  is  a  well-settled  principle  of  international  belligerent 
law,  and  is  applicable  to  a  civil  war  such  as  now  exists.  If  the  army  could 
not  use  military  supplies  captured  from  the  enemy  until  after  legal  con 
demnation  thereof,  one  of  the  most  effective  means  of  war  would  be  lost, 
viz.,  the  right  to  subsist  upon  the  enemy.  The  power  of  the  Union  would 
be  crippled  by  such  legal  entanglements.  But  in  fact,  the  government 
is  in  the  lawful  exercise  of  full  belligerent  rights  against  those  sections 
of  country  which  are  in  rebellion  ;  and  of  those  rights,  none  are  more 
unquestionable  than  that  of  acquiring  legal  title  to  enemy's  property  on 
land,  by  capture,  without  judicial  proceedings. 

The  object  and  purpose  of  the  statute  of  August  6,  1861,  which  was 
passed  near  the  commencement  of  hostilities,  was  not  to  deprive  the  coun 
try  of  its  belligerent  rights,  but  to  render  liable  to  capture  and  prize  certain 
classes  of  property  owned  by  persons  who  should  buy,  sell,  or  hold  it,  or 
allow  its  use  with  an  intent  to  aid  the  rebellion  thereby,  wherever  such 
property  might  be  found.  This  statute  was  only  a  step  towards  the  ap 
plication  of  belligerent  law  —  a  precautionary  or  preventive  act  calculated 
to  deprive  the  enemy  of  such  things  as  were  likely  to  be  applied  to  their  use 
in  carrying  on  war. 

If  such  property  be  seized  by  the  civil  authority,  as  by  the  Marshal  of 
the  United  States,  there  would  be  great  propriety  in  requiring  it  to  be  con 
demned  by  civil  tribunals,  as  title  would  not  otherwise  pass  ;  but  it  cannot 
be  deemed  requisite  that  after  lawful  capture  has  been  made  by  military 

46 


362 


OPINIONS. 


forces  in  the  army,  the  civil  authorities  should  recapture  it,  or,  in  the  words 
of  the  statute,  "  That  it  shall  be  the  duty  of  the  President  to  cause  the  same 
to  be  seized,  confiscated,  and  CONDEMNED." 

If  this  view  of  the  statute  be  erroneous,  if  all  captures  of  personal  proper 
ty  on  land  by  military  forces  must  also  be  seized  by  the  Marshal,  confiscated 
and  condemned,  then  the  President  must  commence  a  lawsuit  every  time  a 
detachment  of  troops  captures  a  gun,  a  bushel  of  corn,  or  a  stack  of  forage 
from  the  enemy,  and  he  must  share  the  fruits  of  victory  with  an  army  of 
informers  before  he  can  feed  his  soldiers  with  the  provisions  they  have 
captured.  Such  a  mode  of  carrying  on  war  is  unheard  of,  and  is  im 
practicable. 

As  the  title  to  the  corn  was  perfect  without  the  proceeding  in  Court,  as 
above  stated,  it  would  seem  that  the  institution  thereof  was  unnecessary, 
and  without  justification.  The  only  result  or  effect  it  could  have  was  to 
make  costs,  and  deprive  the  United  States  of  that  which  was  already  legally 
and  justly  their  own. 

The  claimant  has  been  deprived  of  the  expected  fruits  of  his  legal  pro 
cess  ;  and  if  there  were  no  other  objection  to  his  claim,  there  is  no  appro 
priation  from  which  this  Department  would  feel  at  liberty  to  pay  the  same. 

It  is  recommended  that  payment  be  refused. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
April  24,  1863. 

[No.  195.] 
CROW,  WYLIE,  &  CO. 

The  Secretary  of  State  asks  attention  to  the  enclosed  copy  of  a  note  from 
Lord  Lyons  relative  to  certain  lumber  at  Pensacola,  the  property  of  Messrs. 
Crow,  Wylie,  &  Co.,  of  Liverpool,  who  desire  to  remove  the  same,  it  having 
been  bought  before  the  outbreak  of  the  war  and  the  establishment  of  the 
blockade. 

OPINION. 

There  is  not  sufficient  or  satisfactory  evidence  that  the  title  to  the  lumber, 
&c.,  was,  at  the  time  when  hostilities  commenced,  legally  vested,  in  part  or 
in  whole,  in  the  claimants. 

There  was  an  efficient  blockade  upon  Pensacola  before  any  attempt  to 
export  said  timber,  &c.,  was  made  by  or  for  said  claimants,  of  which  they 
had  notice,  and  which  still  remains  in  force. 

For  these  and  other  reasons,  I  recommend  that  this  Department  decline 
to  interfere  in  relation  to  the  claim  of  Messrs.  Crow,  Wylie,  &  Co. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
May  28,  1863. 


OPINIONS.  363 

[No.  332.] 

Claim  for  Seized  Property. 
MRS.  EUGENIA  P.  BASS. 

Claimant  for  property  taken  by  the  United  States  army  from  her  plantation 
in  Mississippi,  for  the  public  service. 

OPINION. 

Mrs.  Eugenia  P,  Bass,  claimant  against  the  United  States  for  property 
alleged  to  have  been  taken  by  the  forces  of  the  United  States  from  her 
plantation  in  Mississippi,  in  February  and  April,  1863. 

The  only  evidence  offered  in  support  of  the  claim  of  Mrs.  Bass  is  her 
own  affidavits,  in  which  she  testifies  to  her  belief  of  facts  of  which  she  has 
been  informed. 

From  this  testimony,  it  would  appear  that  the  forces  of  the  United  States 
have  captured  certain  mules,  oxen,  beef  cattle,  bacon,  chickens,  potatoes, 
wines,  sheep,  horses,  cotton,  &c.,  in  the  months  of  February  and  April, 
1863,  from  the  plantation  of  the  claimant  in  the  State  of  Mississippi. 

That  this  property  was  captured,  would  appear  probable  from  the  fact 
that  receipts  were  demanded,  as  the  claimant  says,  and  were  refused.  The 
items  charged  are  not  known  by  the  affiant  to  be  correct,  either  as  to 
quality,  quantity  or  value  of  the  things  alleged  to  have  been  taken.  Her 
testimony  is  in  accordance  with  the  best  information  she  can  obtain,  as  she 
alleges. 

Her  loyalty  to  the  United  States  is  averred,  and  in  confirmation  she  pro 
duces  a  copy  of  an  oath  alleged  by  her  to  have  been  taken  voluntarily  and 
subscribed ;  and  she  also  produces  a  certificate  of  permission  given  by  Gen 
eral  Grant  to  ship  and  sell  certain  cotton. 

But  the  property  captured  had  been  seized  in  February  and  April,  1863, 
and  the  oath  does  not  purport  to  have  been  taken  until  some  weeks  after 
wards,  viz.,  May  22,  1863. 

The  permission  of  General  Grant  was  dated  September,  1863  ;  and  hence 
it  is  obvious  that  neither  the  oath  nor  the  permission  proves  the  loyalty  of 
the  claimant  in  the  preceding  period  of  February  and  April.  The  oath 
merely  pledges  Mrs.  Bass  to  loyalty  from  and  after  the  date  thereof,  but 
does  not  allege  that  she  had  been  loyal  previously,  nor  that  she  had  taken 
no  part  with  the  rebels  prior  to  that  time.  It  may  have  been  sincerely 
taken,  pledging  her  future  loyalty,  with  a  view  to  recover  the  property 
which  had  been  previously  captured. 

In  relation  to  the  permission  given  by  General  Grant  to  the  claimant  to  sell 
cotton  she  then  had,  no  evidence  is  offered  to  show  what  representations 
were  made  to  him,  whereby  that  permit  was  issued,  nor  is  it  probable  that 
he  intended  to  have  such  permit  used  as  evidence  to  sustain  the  present  claim. 

No  report  has  been  asked  for  or  obtained  from  the  military  authorities 


364  OPINIONS. 

by  whom  the  capture  is  alleged  to  have  been  made,  and  it  would  be  im 
practicable  to  protect  the  rights  of  the  government  if  this  case  were  to  be 
adjudicated  on  the  evidence  as  it  now  stands. 

If  property  of  the  character  above  named  is  seized  by  the  forces  of  the 
United  States  in  time  of  war  in  a  belligerent  district,  it  is  a  fair  presumption 
that  it  has  been  lawfully  captured.  It  is  true  that  this  presumption  may  be 
overcome  by  proof.  But  if  property  contraband  of  war  has  been  captured  in  a 
district  which  is  engaged  in  a  territorial  civil  war  against  the  United  States, 
even  if  the  owner  of  it  is  friendly  to  the  United  States,  and  if  he  has  taken 
no  part  in  the  rebellion,  I  am  not  prepared  to  say  that  he  has  any  legal  claim 
for  indemnity  therefor,  without  further  legislation  by  Congress.  Congress 
has,  as  yet,  made  no  appropriation  for  payment  of  such  claims. 

For  the  reasons  therefore, 

1.  That  the  proof  of  quality,  quantity,  and  ownership  of  the  property  in 
question  is  insufficient ; 

2.  That  the  loyalty  of  the  claimant  at  the  time  the  property  was  taken  is 
not  sufficiently  proved ; 

3.  That  if  these  two  points  were  established,  there  will  still  be  no  legal 
claim  for  indemnity  for  property  contraband  of  war  captured  in  a  belligerent 
district ; 

4.  And  that  there  is  no  appropriation  in  this  Department  which  can  be 
applied  to  the  liquidation  of  such  claims,  — 

I  recommend  that  the  claim  of  Mrs.  Bass  be  not  allowed. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

[No.  361.] 
INDEMNITY  TO   FRENCH  SUBJECTS. 

The  Secretary  of  State  forwards  a  translation  of  a  communication  of  Vis 
count  Treilhard,  who  writes  on  behalf  of  the  French  Minister  respecting  the 
claims  of  some  French  residents  of  New  Orleans,  from  whom  the  Federal 
authorities  are  alleged  to  have  forcibly  taken  arms  which  have  not  been 
paid  for. 

OPINION. 

The  communication  addressed  to  the  Secretary  of  State  from  the  Lega 
tion  of  France,  asking  attention  to  the  claims  of  certain  French  residents 
of  New  Orleans,  has  received  a  careful  examination.  The  statements  of  loss, 
and  consequent  claims,  are  preferred  by  four  persons,  viz. :  — 

1.  Pierre  Mattie. 

2.  A.  Chievre. 

3.  B.  Phillipe,  and 

4.  J.  Gilbaux. 


OPINIONS.  365 

From  the  report  of  the  Provost  Marshal-General  in  New  Orleans,  it  appears 
that  all  the  persons  named  above  are  unknown  to  the  Consul  of  France  at 
New  Orleans,  and  that  in  the  cases  of  Mattie,  Chievre,  and  Phillipe,  no 
evidence  has  been  produced,  or  could  be  procured,  either  of  the  identity, 
citizenship,  conduct,  or  losses  of  these  persons.  I  cannot,  therefore,  recom 
mend  any  action  in  regard  to  them  at  the  present  time,  and  in  the  present 
state  of  the  proofs. 

In  regard  to  the  case  of  J.  Gilbaux,  it  appears  from  the  evidence  and 
papers  submitted  that  the  articles  taken  from  his  shop  on  the  17th  May, 
1862,  were  contraband  of  war,  and  intended  in  part  for  the  equipment  of  a 
Confederate  battery ;  that  he  had  been  engaged  in  making  up  and  furnish 
ing  to  the  Confederates,  goods  of  a  similar  character,  down  to  the  time  of  the 
occupation  of  New  Orleans  by  the  forces  of  the  United  States  ;  that  the 
goods  taken  from  his  shop,  as  above  stated,  were,  in  part  at  least,  used  for 
the  equipment  and  service  of  cavalry  of  the  United  States  ;  and  further, 
that  the  whole  value  of  the  goods  so  taken,  instead  of  being  about  nine 
thousand  dollars,  as  represented  by  said  claimant,  would  not  be  much,  if 
any,  in  excess  of  two  hundred  dollars. 

There  is  no  proof  of  the  nationality  of  the  claimant,  or  that  the  goods 
taken  were  his  property,  and  he  seems  to  have  forfeited  any  right  that  he 
might  otherwise  have  had  to  favorable  consideration  as  a  French  citizen, 
by  violation  of  his  duty  as  a  neutral,  and  by  aiding  the  rebellion.  I  would 
say,  also,  that  even  if  the  results  of  further  inquiries  should  bs  favorable 
to  the  several  claimants  above  named,  this  Department  would  be  unable  to 
satisfy  those  claims,  as  there  is  now  no  appropriation  in  its  control  from 
which  they  could  lawfully  be  paid. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

December  5,  1863. 

[No.  357.] 
CAPTAIN  SHERWIN. 

The  Secretary  of  State,  June  10,  1863,  addressed  a  letter  to  the  Secre 
tary  of  War,  requesting  the  opinion  of  the  Solicitor  of  the  War  Depart 
ment  in  reference  to  a  reply  to  Lord  Lyons's  note  of  May  27,  in  relation 
to  the  case  of  Captain  Sherwin. 

On  the  1st  of  July,  1863,  Mr.  Whiting  submitted  to  the  Secretary  of 
State  his  views  on  the  subject  in  an  opinion  in  extenso,  which  is  on  record. 

On  the  llth  of  November,  1863,  the  Secretary  of  State  communicated 
a  copy  of  a  note  from  Lord  Lyons,  in  which  he  renews  the  demand  for  ade 
quate  compensation  in  the  case  of  Captain  Sherwin,  and  suggests  its  refer 
ence  to  Mr.  Whiting  for  examination. 


366  OPINIONS. 


WAR  DEPARTMENT,  SOLICITOR'S  OFFICE,  > 
WASHINGTON,  D.  C.,  July  1, 1863.        i 

The  Hon.  WILLIAM  H.  SEWARD, 

Secretary  of  State. 

SIR  :  The  letter  addressed  by  you  to  the  Hon.  Edwin  M.  Stanton,  Secre 
tary  of  War,  dated  June  10,  1863,  has  been  referred  to  me,  in  which  you 
did  me  the  honor  to  request  any  suggestions  that  might  occur  to  the  Solici 
tor  of  the  War  Department,  with  a  view  of  answering  Lord  Lyons's  note  of 
the  27th  ultimo,  in  relation  to  the  case  of  Captain  Sherwin,  an  alleged  British 
subject. 

The  pressure  of  other  engagements  has  prevented  an  earlier  reply.  I 
now  submit,  with  great  deference  and  respect,  the  following  memoranda  for 
your  consideration. 

I  have  the  honor  to  be,  sir, 

Your  obedient  servant, 
(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

A  claim  against  the  government  of  the  United  States  having  been  made 
by  Her  Majesty's  government,  in  behalf  of  Captain  John  Sherwin,  an  alleged 
British  subject,  for  damages  suffered  by  him  in  consequence  of  an  arrest 
and  detention  by  military  authority,  in  a  time  of  active  hostilities,  during  a 
rebellion  involving  a  large  portion  of  the  inhabitants  of  this  country,  and 
there  being  no  question  of  the  fact  that  such  arrest  and  imprisonment  were 
so  made,  and  that  he  was  discharged  therefrom  without  being  held  to  answer 
over  to  any  indictment  of  a  grand  jury,  and  that  such  imprisonment  was,  to 
a  certain  extent,  injurious  to  him,  the  question  remaining  to  be  determined 
is,  whether  he  is  entitled,  through  the  agency  of  Her  Majesty's  government, 
to  claim  indemnity  from  the  United  States. 

To  establish  such  claim,  Captain  Sherwin  must  offer  reasonable  proof  that 
he  was,  at  the  time  of  his  arrest,  a  British  subject. 

In  recurring  to  the  evidence  on  that  point,  it  will  be  observed  that  there 
is  no  allegation  in  the  letter  of  the  Hon.  William  Stewart  to  the  Hon.  Wil 
liam  H.  Seward,  Secretary  of  State,  that  Captain  Sherwin  was,  or  ever  had 
been,  a  British  subject. 

An  examination  of  the  correspondence  will  show  that  it  was  not  until  the 
27th  of  May,  1863,  and  in  the  letter  of  Lord  Lyons  of  that  date,  that  the 
fact  of  Captain  Sherwin's  citizenship  for  the  first  time  appeared  to  be  as 
sumed  or  taken  as  true. 

In  addition  to  this  circumstance,  which,  doubtless,  may  be  attributable  to 
accidental  oversight,  no  evidence  is  offered  of  the  clearances  or  other 
papers  connected  with  the  voyage  of  the  Rowena,  and  of  the  Dixie,  in 
which  Captain  Sherwin  had  sailed,  being  American  ships  trading  with 


OPINIONS.  367 

American  ports,  whereby  he  might  show  whether  he  had  or  had  not  repre 
sented  himself  as  a  British  subject. 

The  fact,  however,  on  which  much  reliance  is  placed,  making  it  more 
necessary  that  proof  of  nationality  should  be  furnished,  is  this,  namely  : 
that  at  the  time  of  his  arrest,  and  during  the  whole  period  of  his  imprison 
ment,  he  did  not  make  known  to  this  government  that  he  claimed  to  be  a 
subject  of  Great  Britain,  and  did  not  request  his  release  on  that  ground. 
Supposing,  however,  proof  should  be  satisfactory  on  that  question,  other  facts 
must  then  be  considered. 

It  appears  from  the  evidence  in  the  possession  of  the  War  Department, 
that  Captain  Sherwin,  in  the  year  1862,  was  engaged  in  a  clandestine  and 
unlawful  manner  in  taking  on  board  of  a  ship,  navigated  by  him  and  called 
the  Dixie,  and  in  transporting  from  Reedy  Island,  in  Delaware  River,  cer 
tain  persons  whom  he  had  reasonable  cause  to  believe  and  to  know  were 
public  enemies  of  the  United  States,  for  the  purpose  of  enabling  them  to 
join  those  who  were  in  arms  against  the  government. 

He  left,  the  port  of  Philadelphia  without  having  obtained  license  to  carry 
passengers  ;  he  reported  to  the  revenue  cutter  which  overhauled  his  vessel 
after  leaving  port,  that  he  had  no  passenger  on  board  ;  but  after  that  time  he 
took  up  five  persons  at  the  island  aforesaid,  who  were  notorious  secession 
ists,  and  who  had  been  secreted  several  days  ;  carried  them  out  of  the  country, 
and  transferred  them  at  sea  to  a  vessel  bound  for  Nassau,  N.  P.,  with  a 
view  of  enabling  them  to  join  their  confederates  in  the  rebellious  States, 
or,  at  least,  with  the  intention  of  enabling  them  to  escape  the  performance  of 
their  legal  obligation  to  serve  as  a  part  of  the  forces  of  the  United  States 
in  the  present  war,  they  being  subject  to  be  drafted  therein  according  to  law. 

These  proceedings  were  in  direct  violation  of  the  laws  of  the  United  States 
and  the  Proclamation  of  the  President,  and  were  acts  of  hostility,  according 
to  the  law  martial. 

Having  arrived  at  Nassau,  Captain  Sherwin  there  sold  his  vessel,  returned 
to  Philadelphia,  and  purchased  another  vessel. 

Under  these  circumstances  there  was  good  and  reasonable  cause  known  to 
the  government  for  suspecting  and  believing  that  Captain  John  Sherwin  was 
actively  engaged  in  aiding  and  abetting  public  enemies  of  the  United 
States  to  gain  access  to  their  allies,  or  at  least  to  avoid  a  duty  which  they  were, 
if  loyal  citizens,  legally  bound  to  perform,  while  at  the  same  time  he  was 
violating  the  municipal  laws  thereof,  in  associating  with  those  who  were 
friendly  to  the  insurgents,  if  not  themselves  active  participants  with  them. 

The  nature  of  the  cargo  of  the  Rowena,  her  place  of  destination,  taken 
in  connection  with  the  former  voyage  to  Nassau,  and  the  sale  of  his  vessel 
in  a  port  which  has  furnished  shelter  and  protection  to  the  armed  cruisers 
of  the  secessionists,  and  is  the  chief  nucleus  to  which  those  persons  resort 
who  violate  the  Proclamation  of  Her  Majesty  and  the  blockade  of  the  south 
ern  coast  of  the  United  States  ;  and  the  other  features  of  Captain  Sherwin's 


368  OPINIONS. 

proposed  expedition,  so  plainly  indicated  his  intention  of  renewing  his  former 
offences,  as  to  afford  justifiable  cause  for  the  seizure  of  his  vessel,  and  the 
arrest  and  detention  of  his  person  in  time  of  civil  war. 

Under  these  circumstances,  Captain  Sherwin  was  arrested  as  a  military 
prisoner,  for  the  purpose  of  preventing  him  from  continuing  in  hostile  prac 
tices  against  the  United  States,  and  having  been  detained  until  it  was 
believed  that  he  might  again  be  set  at  liberty  without  endangering  the 
public  safety,  and  that  he  would  thereafter  refrain  from  repeating  his  former 
offences,  he  was  then  discharged  without  punishment. 


[No.  362.] 

Indemnity  to  a  French  Subject. 
THEODORE  MOREAU. 

The  Secretary  of  State  invites  attention  to  the  letter  of  the  French  Min 
ister,  relative  to  the  complaint  of  Mons.  Theodore  Moreau,  a  French  subject, 
tenant  of  one  of  the  houses  of  Mr.  Slidell,  at  New  Orleans,  who  finds  him 
self  constrained,  in  consequence  of  the  conscription  law,  to  pay  a  second 
time  to  the  Federal  authorities,  rents  satisfied  by  him  up  to  the  expiration 
of  his  liability  to  Mr.  Slidell. 

OPINION. 

In  regard  to  the  claim  of  Theodore  Moreau,  presented  by  the  Minister 
of  France  to  the  Secretary  of  State,  I  have  the  honor  to  submit  that,  upon 
examination  of  the  documents  laid  before  me,  I  find  the  facts  to  be  as  fol 
lows  :  — 

Theodore  Moreau,  a  French  citizen  (and  now  resident  in  Paris),  has  through 
his  agent,  one  Dumargeau,  occupied  for  purposes  of  trade,  a  store  in  New 
Orleans,  No.  36  St.  Charles  Street,  belonging  to  Mr.  John  Slidell.  This  agent 
now  complains  that  on  the  second  day  of  July,  he  was  compelled  to  pay  to 
Captain  McClure,  Quarter-master  in  the  service  of  the  United  States,  the 
sum  of  $480,  as  rent  for  said  property  from  November  1,  1862,  to  July  1, 
1863,  eight  months,  at  the  rate  of  $60  per  month,  "  although  he  had  a  writ 
ten  lease  "  from  Mr.  Slidell  "  arranged  for  by  notes." 

He  further  alleges  that  he  refused  to  pay  this  rent  to  the  Quarter-master, 
when  it  was  demanded,  but  was  compelled  to  pay  under  protest,  because  his 
store  was  forcibly  closed  by  military  order.  He  does  not  allege  any  loss  or 
damage  arising  from  such  closing. 

This  claim  was  referred  to  the  general  commanding  the  Department  of 
the  Gulf  for  examination,  and  the  report  made  by  his  order  shows  that  this 
property,  No.  36  St.  Charles  Street,  New  Orleans,  had  been  leased  by  Mr. 
John  Slidell  to  ]\Ir.  T.  Moreau  for  a  term  of  years ;  that  this  term  expired 
November  1,  1862,  and  that  Captain  McClure,  Quarter-master  then  in  charge, 


OPINIONS.  369 

made  a  contract  with  Moreau's  agent,  Dumargeau,  to  let  it  to  him  at  a 
reduced  rate,  viz.,  at  $60  per  month,  instead  of  $150  per  month,  which  had 
been  the  stipulated  rent  up  to  that  time  ;  that  Moreau's  agent  occupied  the 
premises  from  November  1,  1862,  to  July  1,  1863,  in  pursuance  of  the  said 
contract.  He  was  then  called  on  to  pay  the  rent  for  the  eight  months  which 
had  elapsed,  viz.,  $480 ;  but  this  he  refused  to  do. 

This  refusal  continuing,  on  the  second  day  of  July,  the  Quarter-master 
ordered  the  guard  to  close  the  store.  This  was  done.  On  the  third  day 
of  July  Mr.  Dumargeau,  as  Moreau's  agent,  paid  the  rent,  and  his  store  was 
again  put  in  his  possession  without  damage  or  loss. 

It  further  appears  from  the  report,  that  at  or  about  the  time  of  the  expi 
ration  of  the  lease  from  Slitfell  to  Moreau,  viz.,  November  1,  1862,  Captain 
McClure,  the  Quarter-master,  having  charge  of  the  Property  Department, 
had,  under  the  order  confiscating  Slidell's  property,  received  from  his  agent 
the  lease  referred  to  and  several  of  the  notes  given  by  Moreau  in  advance 
payment  for  the  rent  of  this  and  an  adjoining  property,  amounting  to  $3125 ; 
and  as  Moreau  remained  in  occupation  of  the  premises,  his  agent  was  called 
on  to  pay  these  notes.  He  professed  inability,  "  plead  poverty,"  and  the 
United  States  authorities,  upon  his  paying  $1500,  gave  him  up  the  whole 
of  the  notes,  amounting,  as  above  stated,  to  $3125,  thus  releasing  him  from 
a  binding  pecuniary  obligation  to  the  extent  of  $1625.  The  Quarter-master 
then  reduced  his  rent,  which  had  been,  for  this  property,  $150  per  month,  to 
$60  per  month ;  and  it  is  the  enforced  payment  of  the  eight  months'  rent 
at  the  reduced  rate,  of  which  he  now  complains. 

The  evidence  shows  further,  that  this  Dumargeau  was  abusive  and  irri 
tating  in  his  language,  denying  the  right  of  the  United  States  authorities  to 
collect  the  rent,  and  defying  openly  their  power. 

It  is  not  claimed,  on  behalf  of  Moreau,  that  he  has  as  yet  been  compelled 
to  pay  double  rent  to  any  one,  and  he  shows  no  pecuniary  damage. 

On  the  contrary,  it  does  appear  that  his  notes  to  the  amount  of  $1625 
have  been  surrendered  to  him  without  payment ;  and  his  rent  for  a  period  of 
eight  months  has  been  reduced  from  $150  to  $60  per  month,  being  a  saving 
of  $720  additional. 

It  may  be  remarked  that  Mr.  Dumargeau  alleges  that  this  lease  extended 
to  October,  1863,  but  Captain  McClure  states  positively  that  it  expired 
November  1,  1862,  and  that  the  lease  itself  was  given  to  him  by  Slidell's 
agent.  Even  if  the  term  specified  in  the  lease  had  not  expired,  Moreau's 
agent — by  contracting  with  Captain  McClure,  paying  him  $1500  for  the  notes, 
and  receiving  a  surrender  of  the  balance  of  $1625,  and  entering  into  a  new 
contract  to  pay  to  the  United  States  $60  per  month  —  has  lost  any  right 
that  he  might  have  had  under  the  original  lease,  even  if  his  own  statement 
of  the  time  be  true. 

Mr    Dumargeau  further  complains  that  the  rents  of  certain  parts  of  this 

47 


370  OPINIONS. 

same  property  —  which  had  been  underlet  by  him,  and  for  which,  under  pro 
test,  as  above  stated,  he  has  now  paid  the  rent  to  the  United  States  —  have 
been  collected  by  the  Quarter-master,  from  the  under-tenants,  and  that  thus 
the  United  States  government  had  been  in  receipt  of  double  rent ;  but  he 
does  not  allege  that  he,  or  his  principal,  has  suffered  any  loss  of  rent  due, 
or  that  any  under-tenant  has  refused  to  pay  him  what  rents  might  be  law 
fully  demanded. 

No  evidence  is  adduced,  on  the  part  of  Moreau,  to  support  this  last  com 
plaint,  except  the  written  statement,  not  under  oath,  of  the  agent,  Dumar- 
geau.  And  these  allegations  are  fully  disproved  by  the  report  and  official 
statement  of  Captain  McClure,  the  Quarter-master  in  charge. 

From  the  foregoing  statement,  it  appears  that  Slidell,  the  lessor,  a  well- 
known  traitor,  now  residing  in  France,  and  engaged  in  open  hostilities 
against  the  United  States,  is  the  owner  of  the  property  in  question  ;  that  it 
has  been  seized,  and  is  now  held,  as  enemy  property  by  our  military  forces ; 
that  the  said  real  estate  had  been  leased  by  Slidell  to  Theodore  Moreau ; 
that  Moreau  had  given  Slidell  his  notes  in  advance,  for  payment,  or  security 
for  the  payment,  of  the  rent ;  that  the  lease  expired  November  1,  1862,  and 
that  thereupon  all  right  of  said  lessee  ceased,  and  the  occupant  became 
tenant  under  the  United  States. 

A  part  of  the  notes  aforesaid,  amounting  to  the  sum  of  $3125,  have  been 
taken  into  the  possession  of  the  United  States  and  surrendered  to  the  lessee, 
without  even  making  a  payment  of  more  than  one  half  the  amount  thereof: 
so  that  while  he,  on  his  part,  has  enjoyed  the  full  consideration  of  the  bar 
gain,  he  has  not  performed  the  corresponding  obligation  to  pay  the  notes. 

It  appears  distinctly  that  Mr.  Moreau  has  not  been  called  upon  to  pay  his 
notes  a  second  time  to  the  Federal  authorities,  but  on  the  contrary,  as  above 
stated,  has  been  relieved  from  payment  of  a  considerable  proportion  of  the 
sum  for  which  he  had  given  his  obligation  to  Mr.  Slidell. 

The  hardship,  if  any,  exists  on  the  part  of  the  United  States,  who  have 
not  received  the  full  value  of  the  rents  due  to  them.  Since  the  lease  expired, 
the  occupant,  having  become  tenant  to  the  United  States  directly,  cannot 
complain  that  he  is  required  to  pay  rent.  Still  less  is  such  complaint  well 
founded,  if  it  be  considered  that  the  amount  paid  by  him  is  much  less  than 
what  he  was  to  pay  under  the  lease,  and  that  his  liability  to  pay  anything 
could  have  been  avoided  by  him,  by  giving  up  the  premises  to  their  rightful 
owner,  the  government  of  the  United  States. 

I  therefore  have  the  honor  to  recommend  that  no  allowance  should  be 
made  to  the  applicant. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
December  3,  1863. 


OPINIONS.  371 

[No.  369.] 

Claim  for  Cotton  seized. 
SIMON    QUEYROUSE, 

A  French  subject,  claims  pay  for  fifty-six  bales  of  cotton  taken  from  him 
by  the  United  States. 

OPINION. 

The  memorial  of  Simon  Queyrouse  shows  that  he  was,  in  September,  1862, 
an  alien  resident  in  New  Orleans,  within  the  lines  of  the  United  States  army  ; 
that  at  some  time  previous  he  had  purchased  of  one  Lestrapes,  resident 
within  the  rebel  lines,  fifty  bales  of  cotton  ;  that  this  cotton  was  then  stored 
in  the  enemy's  country. 

In  May,  1863,  these  fifty  bales,  with  six  others,  were  captured  by  the 
United  States  forces  under  command  of  Major-General  Banks. 

There  is  thus  disclosed  a  case  of  apparently  unauthorized  trading  with 
the  enemy,  contrary  to  the  Proclamation  of  the  President  issued  August  16, 
1861 ;  and  by  virtue  of  that  Proclamation  this  merchandise,  if  brought  within 
States  not  in  insurrection,  or  if  captured,  would  be  forfeited. 

Under  the  Act  approved  March  12,  1863,  and  the  orders  of  the  Secretary 
of  War  made  in  pursuance  thereof,  captured  property  is  to  be  turned  over  to 
the  special  agents  appointed  by  the  Secretary  of  the  Treasury,  to  be  disposed 
of  by  them  according  to  law.  The  capture  complained  of  by  Mr.  Queyrouse 
was  made  since  the  passage  of  this  Act. 

I  cannot  advise,  therefore,  that  this  Department  interfere  with  the  disposal 
of  this  cotton  by  the  special  agents  of  the  Treasury  Department,  or  sanction 
any  claim  for  compensation  for  the  property  delivered,  or  to  be  delivered,  to 
them. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
December  5,  1863. 

[No.  410.] 
Senate  Resolution  as  to  Enrolment  of  Slaves. 

Enrolment  of  slaves  in  Maryland,  Delaware,  West  Virginia,  Kentucky, 
and  Missouri. 

Resolution  of  the  Senate  inquiring  of  the  Secretary  whether  the  slaves  in 
the  above  States  have  been  enrolled ;  and  if  not,  why  not  ? 

Letter  to  the  Senate,  in  answer  to  the  resolution,  prepared  for  the  signa 
ture  of  Secretary  of  War  December  31,  1863. 

COPY  OF  LETTER. 

...  As  the  resolution  is  understood,  "  persons  held  to  service  or  labor 
by  the  laws  of  Delaware,  Maryland,  West  Virginia,  Kentucky,  and  Missouri " 


372  OPINIONS. 

are  slaves  still,  under  the  personal  control  and  possession  of  their  masters, 
within  either  of  the  aforesaid  States,  under  the  laws  thereof. 

In  answer  to  the  inquiry  of  the  resolution,  the  Secretary  of  War  has  the 
honor  to  inform  the  Senate  that  such  slaves  have  not  been  enrolled  among 
the  military  forces  of  the  United  States,  under  any  provision  of  the  "  Act  for 
enrolling  and  calling  out  the  forces  of  the  United  States  and  for  other  pur 
poses,"  approved  on  the  3d  day  of  March,  1863. 

In  answer  to  the  inquiry  "  why  such  enrolment  has  not  been  made  ?  "  the 
Secretary  of  War  has  the  honor  to  say,  that,  in  his  opinion,  the  laws  of  the 
United  States  do  not  allow  the  enrolment  and  calling  into  service  of  slaves 
held  in  the  actual  possession  of  loyal  persons,  who,  being  citizens  of  the 
United  States,  are  also  citizens  of  and  resident  in  either  of  the  aforesaid 
States.  Therefore  such  enrolment  has  not  been  made. 

The  Act  of  March  3,  1863,  ch.  75,  restricts  the  enrolment  to  able-bodied 
citizens  of  the  United  States,  and  persons  of  foreign  birth  who  shall  have 
declared  on  oath  their  intention  to  become  citizens.  The  question  whether 
there  is  any  power  to  enroll  slaves  under  the  provisions  of  the  laws  as  they 
now  stand,  depends  on  the  construction  given  to  the  term  "  citizen  of  the 
United  States."  By  the  laws  of  each  of  the  States  named  in  the  resolution, 
slaves  are  not  citizens  of  such  States,  nor  deemed  to  hold  the  rights  of  cit 
izens  of  the  United  States. 

By  the  opinion  of  the  State  Department,  as  stated  in  the  letter  of  Mr. 
Thomas,  then  Secretary  of  State,  to  Mr.  Rice,  dated  November  4,  1856,  it 
was  held,  "  that  there  can  be  no  doubt  that  negroes  are  not  citizens  of  the 
United  States." 

According  to  the  opinion  of  the  Hon.  Edward  Bates,  Attorney-General 
of  the  United  States,  dated  November  29,  1862,  a  colored  man  may  be  a 
citizen  of  the  United  States,  and  therefore  competent  to  command  an  Amer 
ican  vessel.  But  no  opinion  has  been  expressed  by  him  whether  slaves  can 
or  cannot  be  deemed  citizens  of  the  United  States. 

In  the  case  of  Dred  Scott,  heard  before  the  Supreme  Court  of  the  United 
States  in  1856,  it  was  alleged  that  "  Dred  Scott  was  not  a  citizen  of  the 
State  of  Missouri,  because  he  was  a  negro  of  African  descent,  his  ancestors 
were  of  pure  African  blood,  and  were  brought  into  the  country  and  sold  as 
negro  slaves  ; "  and  on  these  facts,  it  was  pleaded  that  the  court  below  had 
no  jurisdiction.  The  Supreme  Court  sustained  the  plea,  and  decided,  "  upon 
the  whole,  therefore,  it  is  the  judgment  of  this  court  that  it  appears  by  the 
record  before  us  that  the  plaintiff  in  error  is  not  a  citizen  of  Missouri  in  the 
constitution,  and  that  the  Circuit  Court,  for  that  reason,  had  no  jurisdiction 
in  the  case,  and  could  give  no  judgment  in  it.  Its-judgment  for  the  defendant 
(Scott)  must  consequently  be  reversed,  and  a  mandate  issued  directing  the 
suit  to  be  dismissed  for  want  of  jurisdiction."  This  decision  applies  to  a 
colored  person,  who,  having  once  been  a  slave,  then  claimed  his  freedom, 
but  was  denied  the  right  to  become  a  party  before  the  court,  because  he  was 


OPINIONS.  373 

not,  as  the  court  held,  a  citizen  of  Missouri,  and,  therefore,  not  a  citizen  of 
the  United  States. 

That  decision  has  not  yet  been  reversed ;  and  if  persons  of  African  descent, 
being,  or  claiming  to  be,  free,  are  not  citizens  of  any  States,  nor  of  the 
United  States,  a  fortiori,  slaves  of  similar  descent  would  not  be  construed 
by  the  same  court  as  citizens  of  the  United  States,  should  any  attempt  be 
made  to  enroll  them  as  such. 

The  laws  of  Congress  also  indicate  that  slaves  within  the  loyal  States  were 
not  intended  to  be  enrolled  in  the  forces  of  the  United  States. 

The  Act  known  as  the  Fugitive  Slave  Law,  approved  September  18, 
1850,  ch.  60,  is  still  in  force,  whereby  fugitive  slaves,  from  either  of  the  afore 
said  loyal  States,  may  be  reclaimed ;  and  though  the  military  forces  of  the 
country  are  forbidden  to  do  so,  yet  peaceful  citizens  are  still  bound  by  law 
to  aid  in  a  prompt  and  efficient  execution  of  this  slave  law,  by  recapturing 
and  returning  fugitive  slaves  to  their  masters,  whenever  their  services  are 
required  for  that  purpose. 

This  law  still  recognizes  the  right  of  the  slave  master  to  retain  or  to  re 
gain  possession  of  his  slave  who  attempts  to  escape  from  personal  outrage, 
or  through  love  of  country,  seeks  to  join  the  army  of  the  Union. 

The  Act  of  1862,  approved  April  16,  for  abolishing  slavery  in  the  Dis 
trict  of  Columbia,  appropriated  money  to  pay  the  claims  of  slave  masters, 
thereby  showing  an  intention,  on  the  part  of  Congress,  to  recognize  their 
right  to  compensation  for  the  labor  and  service  of  slaves,  when  deprived 
thereof  by  law. 

The  Act  of  July  17,  1862,  ch.  195,  again  recognized  the  right  of  such 
masters  as  had  been  loyal,  had  not  borne  arms  against  the  United  States, 
or  given  aid  and  comfort  to  the  enemy,  to  regain  their  escaped  slaves. 

These  Acts  have  not  been  repealed.  They  are  inconsistent  with  the  treat 
ment  of  slaves  in  loyal  States,  as  citizens  of  the  United  States,  required  to 
be  enrolled  under  the  Act  of  1863. 

The  Proclamations  of  the  President  have  forborne  to  call  upon  slaves  of 
loyal  masters  in  loyal  States,  for  military  service,  without  the  assent  of 
such  masters.  Taking  into  view,  therefore,  the  authoritative  decision  of  the 
Supreme  Court,  the  legislation  of  Congress,  conservative  of  the  alleged 
rights  of  loyal  slave  owners,  and  the  previous  action  of  the  Executive,  the 
Secretary  of  War  has  felt  constrained  to  forbear  to  enroll  slaves  in  the  mili 
tary  forces  under  the  provisions  of  the  Act  of  1863. 

That  the  government  has  the  right  to  call  into  military  service  every  subject 
owing  it  allegiance,  whether  citizen  of  the  United  States  or  not,  whether  bond 
or  free,  it  is  not  supposed  that  any  loyal  man  can  reasonably  doubt ;  and 
if  it  be  the  will  of  Congress,  it  has  the  power  to  exercise  that  right,  and, 
doubtless,  will  pass  such  laws  as  it  may  deem  proper  in  the  present  con 
dition  of  public  affairs. 


374  OPINIONS. 

[No.  433.] 
ALIENAGE. 

How  does  service  in  the  Federal  or  Rebel  army  affect  the  plea  of  alien 
age? 

J.  H.  Foster,  Paymaster,  Twenty-second  District,  Pennsylvania,  reports 
two  cases,  in  one  of  which  he  has  received  instructions  that  service  in  the 
rebel  army  does  not  deprive  a  man  of  the  right  to  exemption  on  the  plea  of 
'alienage  ;  while  in  the  other  he  is  told  that  service  in  the  Federal  army  does 
deprive  him  of  that  right,  and  he  asks  how  the  Board  should  act  on  these  cases. 

OPINION. 

Service  in  the  rebel  army,  by  an  alien,  does  not  make  him  a  citizen  of  the 
United  States,  nor  deprive  him  of  the  benefit  of  the  plea  of  alienage  against 
any  claim  of  this  government  for  military  service.  The  volunteering  of  an 
alien  in  the  army  of  the  United  States,  to  serve  for  a  given  period,  subjects 
him  to  all  the  rules  and  regulations  of  the  military  service,  during  the  term 
of  his  enlistment.  After  his  contract  of  enlistment  has  expired,  he  still  has 
the  rights  of  alienage,  as  against  the  United  States. 

The  Proclamation  of  the  Queen  gives  the  United  States  no  rights  over 
British  subjects,  though  its  violation  subjects  them  to  the  penalties  of  Brit 
ish  laws,  and  to  the  laws  of  war. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

[No.  448.]  ' 
ALIENAGE. 

Colonel  Fry,  Provost  Marshal-General,  submits  the  case  of  two  deserters 
from  a  French  corvette,  who  have  enlisted  in  the  United  States  service  as 
substitutes,  and  who  are  claimed  by  the  French  consul  as  French  subjects, 
and  deserters  from  the  French  service. 

OPINION. 

Aliens,  who  are  subjects  of  a  foreign  government,  having  voluntarily  en 
listed  in  the  service  of  the  United  States,  as  substitutes  for  drafted  men,  are 
not  entitled  to  be  discharged  from  such  service  by  reason  of  alienage ;  but 
may,  under  the  law  of  nations,  be  held  to  perform  their  engagements,  with 
out  giving  the  government  to  whom  their  allegiance  is  due  just  cause  of 
complaint. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 


OPINIONS.  375 


[No.  467,  a.-] 

OPINION 
As  to  the  proper  course  to  be  taken  in  behalf  of  soldiers  who  shot  deserters. 

LETTER  AND   ANSWER. 

WASHINGTON  CITY,  i 
March  12,  1804.      i 

Hon.  WILLIAM  WHITING, 

Solicitor  of  War  Department. 

DEAR  SIR  :  I  have  just  received  a  letter  from  Thomas  Wilson,  Esq., 
Attorney  at  Law,  Davenport,  Iowa,  from  which  I  make  the  following 
extracts :  — 

"  You  remember  the  men  (soldiers)  who  shot  the  colored  man  in  Daven 
port  on  December  25,  1863.  I.  W.  Stewart  and  myself  are  for  the 
defence.  Frazer  (the  corporal)  pleaded  guilty  of  assault  and  battery,  and 
got  thirty  days  in  jail.  Knapp,  Company  H.,  Fifth  Iowa  Infantry,  who 
did  the  shooting,  has  a  change  of  venue  to  Clinton  county.  Court  com 
mences  to-morrow  (March  6),  and  the  trial  will  possibly  commence  on 
March  19.  These  men  were  soldiers  actually  on  duty,  as  Provost  Guard 
from  Camp  McClellan.  Frazer  was  the  corporal  in  command,  and  com 
manded  the  arrest,  and  in  making  the  arrest  the  shooting  occurred.  This 
would  be  a  good  defence  in  Knapp's  case  before  a  military  court,  but 
not  before  a  civil  tribunal. 

"  We  wish  to  get  Knapp  turned  over  to  military  authority,  under  section 
30,  Conscription  Act,  May  3,  1863,  and  to  that  end  I  have  written  (in 
Knapp's  name)  to  General  Sully,  who  refused  to  demand  him  from  the 
civil  authorities,  and  I  sent  the  communication  to  the  Adjutant  General 
United  States  Army. 

"I  then  made  the  same  demand  on  Lieutenant-Colonel  Greer,  who  trans 
mitted  it  direct  to  Adjutant-General  United  States  Army,  both  asking 
opinion  of  the  Solicitor,  Mr.  Whiting,  of  said  section  30.  Three  weeks 
have  passed,  and  we  have  not  heard  from  it.  If  two  weeks  more  pass,  he 
will  have  been  tried  and  convicted  by  civil  court. 

"  Will  you  be  kind  enough  to  see  Mr.  Solicitor  Whiting,  if  he  has  re 
ceived  the  communications,  and  will  answer. 

"  The  legal  proposition  is  this  :  — 

"  If  a  soldier  in  the  United  States  service,  amenable  to  the  articles  of 
war,  engaged  in  performance  of  actual  duty,  under  the  command  of  an 
officer,  commits  one  of  the  crimes,  say  murder,  mentioned  in  section  30,  in 
the  State  of  Iowa,  and  does  it  by  the  express  command  of  his  officer,  will  he 
be  taken  and  tried  by  a  military  court,  under  the  provisions  of  said  section 
30,  or  will  he  be  allowed  to  remain  in  the  hands  of  the  civil  authority  t 


376  OPINIONS. 

"  Mr.  Solicitor  Whiting  has  published  a  small  book,  being  his  opinions  on 
military  arrests.  It  has  some  good  authorities  for  us  ;  will  you  be  kind 
enough  to  obtain  a  copy  for  us,  to  be  used  on  the  trial,  and  send  to  me." 

An  early  answer  to  the  foregoing  will  much  oblige, 

Very  truly  yours,  &c., 
(Signed)  H.  PRICE. 

WAR  DEPARTMENT,  SOLICITOR'S  OFFICE,  ) 
WASHINGTON,  D.  C.,  March  14,  1SG-L       > 
H.  PRICE,  Esq. 

DEAR  SIR  :  Yours  of  the  12th  instant  has  been  received,  containing  ex 
tracts  from  letter  of  Thomas  Wilson,  Esq.,  of  Davenport,  Iowa,  inquiring, 
"  If  a  soldier  in  the  United  States  service,  amenable  to  articles  of  war, 
engaged  in  performance  of  actual  dutyj  under  the  command  of  an  officer, 
commits  one  of  the  crimes,  say  murder,  mentioned  in  section  30,  in  the 
State  of  Iowa,  and  does  it  by  the  express  command  of  his  officer,  will  he  be 
taken  and  tried  by  a  military  court,  under  the  provisions  of  said  section  30, 
or  will  he  be  allowed  to  remain  in  the  hands  of  civil  authority  ?  " 

In  answer  to  this,  and  other  inquiries  contained  in  your  letter,  I  have  the 
honor  to  reply,  — 

That  the  30th  section  of  the  Act  of  March  3,  1863,  ch.  81,  gives  jurisdic 
tion  to  general  courts  martial  and  military  commissions,  over  persons  in  the 
military  service  of  the  United  States,  who,  being  subject  to  the  articles  of 
war,  shall  have  committed  in  time  of  war,  insurrection,  or  rebellion,  either 
of  the  crimes  therein  enumerated,  including  the  crime  of  murder.  But 
this  jurisdiction  is  not  exclusive  of,  but  is  concurrent  with,  that  of  civil 
tribunals. 

Under  the  fifth  amendment  to  the  Constitution,  no  person  shall  "  be  sub 
ject,  for  the  same  offence,  to  be  twice  put  in  jeopardy  of  life  or  limb." 
Therefore,  no  person  can  be  lawfully  condemned  by  any  court,  military  or 
civil,  for  a  crime  of  which  he  has  previously  been  convicted  or  acquitted 
by  a  court  having  jurisdiction  of  the  person  and  of  the  offence.  Where 
courts  have  concurrent,  but  not  exclusive  jurisdiction,  that  court  which  first 
gains  jurisdiction,  excludes  all  others  therefrom. 

If  a  soldier  in  service,  accused  of  "  murder,"  is  first  indicted  and  arrested 
by  the  proper  civil  authorities  of  Iowa,  they  exclude  the  jurisdiction  of  the 
military  courts  over  that  crime  ;  so  if  the  soldier  had  been  arrested  for 
trial  for  that  offence  by  a  court-martial,  the  civil  tribunals  would  have  no 
right  to  interfere.  It  is  not  doubted  that  in  time  of  war,  military  necessity 
will,  under  certain  circumstances,  justify  the  interruption  of  all  proceedings 
by  courts  of  law,  which  may  in  any  way  burden,  impede,  or  oppose  military 
movements,  or  aid  and  comfort  the  enemy.  Nor  is  it  doubted  that,  with 
out  the  assent  of  military  authorities,  no  civil  court,  or  other  civil  authority 
of  any  State,  can  subject  soldiers,  in  the  service  of  the  United  States,  to 


OPINIONS.  377 

their  commands,  or  can  in  any  other  way  interfere  with  the  strict  perform 
ance  of  their  military  duties. 

But  when  the  commander  of  a  Department  finds  it  not  incompatible  with 
his  military  duties  to  permit  the  soldier  to  be  tried  by  civil  courts,  he  usually 
does  so,  out  of  respect  to  local  authorities,  and  with  a  view  of  interfering 
as  little  as  possible  with  the  ordinary  course  of  the  administration  of  justice. 

It  is  obvious  that  there  ought  to  be  some  way  by  which,  in  all  cases,  officers 
who  have  committed  homicides,  or  other  acts  of  violence,  in  the  discharge 
of  their  duties,  should  be  protected  under  the  law ;  and  some  procedures  by 
which  the  same  rules  of  law  should  be  applied  in  all  parts  of  the  country. 

It  would  be  discreditable  to  the  administration  of  justice  if  the  same  act 
should  be  pronounced  a  crime  in  one  State,  and  a  justifiable  act  of  duty  in 
another.  Hence  there  ought  to  be  some  mode  of  applying  uniform  rules  of 
law,  by  one  tribunal,  to  all  like  cases,,  wherever  they  arise. 

This  purpose  has  been  effected  by  the  oth  section  of  the  Act  of  March  3, 
1863,  ch.  81,  which  provides  for  the  removal  of  all  actions,  civil  or  criminal, 
commenced  in  any  State  court,  against  any  person,  for  any  arrest  or  impris 
onment  made,  or  other  trespasses  or  wrongs  done  or  committed,  or  any  act 
omitted  to  be  done,  at  any  time  during  the  present  rebellion,  by  virtue  or 
under  any  color  of  any  authority  derived  from  or  exercised  by  the  President 
of  the  United  States,  or  any  Act  of  Congress,  and  this  section  prescribes 
also  the  proceedings  for  such  removal,  and  forbids  proceedings  in  the  case 
by  State  courts  after  such  removal,  and  transfers  them  to  the  courts  of  the 
United  States. 

The  6th  section  removes,  in  cases  of  error,  the  final  decisions  to  the  Su 
preme  Court  of  the  United  States. 

Therefore,  while  civil  courts  are  allowed  to  retain  concurrent  jurisdiction 
of  persons  in  the  service,  who  have  committed  crimes  punishable  by  mil 
itary  tribunals,  the  accused  are  thus  made  certain  of  securing  impartial  jus 
tice,  administered  under  uniform  rules,  and  are  freed  from  the  dangers  of 
prejudice,  by  excitement  of  local  juries,  or  by  the  errors  of  hostile  or  unin 
formed  judges. 

I  recommend  that  the  cases  of  the  soldiers  (who  shot  the  deserter)  should 
be  removed  from  the  State  court  of  Iowa,  to  the  United  States  Court,  and 
that  there  should  be,  under  the  circumstances,  no  interference  with  the  civil 
tribunals  by  military  authority. 

This  recommendation  is  made,  not  because  I  have  any  want  of  respect  or 
confidence  in  the  eminent  judge  before  whom  the  case  is  pending,  but  be 
cause  it  is  desirable  that  the  practice  should  be  uniform. 

I  forward  herewith  some  copies  of  the  Essay  on  Military  Arrests,  and  I 
trust  that  they  will  indicate  the  grounds  of  defence  which  will  be  of  avail  to 
the  accused.  Very  respectfully, 

Your  obedient  servant, 

(Signed)  WILLIAM  WHITING, 

48  Solicitor  of  the  War  Department. 


378  OPINIONS. 

[No.  487.] 

Claims  for  Cotton  seized. 
W.  W.  CONES. 

A  number  of  claims  for  cotton  seized  and  sold  at  Memphis,  Tennessee, 
presented  by  Mix  &  Co. 

OPINION. 

The  claim  of  W.  W.  Cones,  referred  to  me,  is  for  the  proceeds  of  252 
bales  of  cotton  seized  by  the  forces  of  the  United  States  in  December,  1862, 
in  La  Fayette  county,  in  the  northern  part  of  the  State  of  Mississippi,  trans 
ported  thence  to  Memphis,  Tennessee,  and  there,  by  order  of  General  Grant, 
sold  at  auction,  for  the  benefit  of  the  United  States,  at  SOJ  cents  per  pound. 

The  net  proceeds  of  sale  were  paid  over  by  the  Rental  Officer  to  the  Quar 
ter-master's  Department. 

Mr.  Cones  has  never  been  in  possession  of  the  cotton,  but  alleges  that  he 
had  a  good  title  by  lawful  purchase  from  loyal  owners,  within  the  lines  of 
trade,  established  by  law  under  the  Regulations  of  the  Treasury. 

In  support  of  this  title,  he  produced  copies  of  certain  documents,  of 
licenses  issued  to  him  to  buy  cotton,  of  agreements  for  sales  of  cotton  made 
by  one  Denton,  professing  to  be  an  agent  of  Cones,  of  bills  of  sale  receipted, 
of  certificates,  letters,  &c.,  —  of  all  of  which  the  originals  should  be  required 
if  the  claim  be  further  urged. 

Dealing,  however,  with  these  copies  as  if  they  had  been  originals,  Mr. 
Cones  has  not  presented  evidence  sufficient  to  maintain  his  claim. 

1.  It  does  not  appear  that  the  agent,  Denton,  with  whom  the  contracts 
relied  on  were  made,  had  authority  from  the  original  owners  of  the  cotton 
to  make  sales  of  it,  at  any  time  previous  to  its  seizure  by  the  United  States. 

2.  It  does  not  appear  that  Cones,  on  his  part,  had  the  right  to  exercise 
the  privilege  of  trading  under  a  Treasury  license,  by  means  of  an  agent  or 
agents.     This  privilege  was  personal,  granted  to  him  because  he  was  sup 
posed  to  be  a  loyal,  discreet,  and  honest  man,  and  it  could  not  be  exercised 
at  his  pleasure,  by  deputies  of  any  character,  or  in  any  numbers,  unknown 
to  the  Treasury  Department.* 

3.  It  does  not  appear  that,  at  the  date  of  the  contract,  W.  A.  Thornburgh, 
who  undertook  to  act  in  Cone's  behalf,  had,  in  fact,  been  authorized  by  him 
to  purchase  cotton  under  his  license. 

4.  It  does  not  appear  that  the  cotton  itself  was,  at  the  time  of  the  alleged 
purchase,  within  the  lines  of  the  army  of  the  United  States,  as  established  - 
by  the  order  of  Major-General  Grant ;  but  it  is  probable,  upon  the  evidence, 
that  it  was  without  —  south  of,  and  beyond,  those  lines ;  and  therefore  not 
the  subject  of  lawful  trade  between  loyal  citizens  and  public  enemies. 

5.  It  does  not  appear  that  the  cotton  had  not  been  actually  seized  by  the 
United  States  troops,  when  Denton,  as  agent  of  the  planters,  undertook  to 

*  See  Ouachita  case,  fi  Wallace,        ;  McKee  v.  United  States,  9  Wallace,  166. 


OPINIONS.  379 

sell  it.  The  precise  time  of  seizure  is  not  stated ;  but  the  evidence  tends 
strongly  to  show  that  the  seizure  preceded  the  attempted  sale.  If  so,  the 
claim  now  presented  cannot  be  maintained. 

6.  The  alleged  payment  by  Cones  of  the  agreed  price,  twenty-five  cents 
per  pound,  to  the  agent  of  the  planters,  is  not  sufficiently  proved;   but  if 
made,  it  gave  Cones  no  title  to  the  cotton,  if  he  had  not  a  valid  one  before. 

It  was  made  voluntarily,  with  full  knowledge  of  the  facts  that  the  plant 
ers  could  not  perform  their  part  of  the  contract,  and  that  the  cotton  had 
been  seized  and  ordered  to  be  sold,  by  the  highest  military  authority  in 
that  Department.  If  Cones  paid  in  his  own  wrong,  he  must  look  for  reim 
bursement  to  the  parties  who  received  his  money,  and  not  to  the  United 
States. 

7.  If  the  character  of  the  several  planters  by  whom  the  cotton  was  raised 
and  for  whom  it  was  sold,  be  considered,  the  proof  of  their  loyalty  is  not 
sufficient ;  indeed,  it  is  admitted  that  two  of  them  were  in  the  rebel  army. 

I  recommend,  therefore,  that  no  action  be  taken  by  this  Department  con 
cerning  this  claim. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
October  1,  1864. 

[No.  518.] 

Draft  of  a  Bill  for  Adjustment  of  the  Claim  of  Aliens  against  the  United 
States,  arising  since  the  War. 

The  Secretary  of  State  submits  to  the  Secretary  of  War,  a  Bill  for  the 
above  purpose,  for  suggestion  and  amendment. 

OPINION. 

I  have  the  honor  to  report  that  the  Bill  was  framed  by  me,  at  the  request 
of  the  Hon.  Mr.  Seward,  aided  by  suggestions  from  him,  and  improved  by 
one  or  two  amendments  subsequently  made  by  him,  and.it  appears  to  me 
to  be  carefully  considered,  and  well  calculated  to  answer  the  purposes  for 
which  it  was  drawn. 

I  had  supposed  that  the  Secretary  of  State  would  take  occasion  to  confer 
personally  with  you  upon  the  question  of  the  expediency  of  adopting  this,  or 
any  other  plan,  at  the  present  time,  for  establishing  a  tribunal  with  power 
to  adjust  foreign  claims.  That  conference  not  having  as  yet  occurred,  I 
deem  it  my  duty  to  suggest,  for  your  consideration,  the  questions,  — 

1.  Whether  it  is  expedient  to  inaugurate  a  system  providing  for  the  ad 
justment  and  payment  of  foreign  claimants,  prior  to,  and  independent  of,  any 
measures  of    legislation  looking  to  the  settlement  of  claims  of  our  own 
citizens. 

2.  Whether  it  will  be  profitable  to  protect  the  interests  of  the  United 


380  OPINIONS. 

States  by  .referring  claims  arising  out  of  the  conduct  of  our  military  opera 
tions,  to  a  tribunal  which,  being  totally  disconnected  from,  and  independent 
of  the  War  Department,  cannot  have  such  knowledge  of  facts  or  of  the 
means  of  obtaining  them,  as  will  be  absolutely  necessary  to  protect  the  in 
terests  of  the  United  States  in  controversies  of  this  character. 

Claims  will  be  brought  before  these  commissioners  whose  sessions  may 
be  in  places  remote  from  Washington.  The  War  Department  may  have  no 
knowledge  of  such  claims,  and,  having  no  responsibility,  will  have  no  occasion 
to  require  them  to  be  investigated  by  its  officers ;  so  that  vast  amounts 
may  be  awarded  against  the  government,  by  default  of  proofs,  and  the  facts 
in  defence  may  be  known  only  to  those  military  officers  who  took  part  in 
making  the  seizures  complained  of. 

These  and  other  similar  objections  will,  I  doubt  not,  be  weighed  by  you 
and  by  the  Secretary  of  State.  I  have  thought  it  proper  merely  to  call  atten 
tion  to  them. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
April  18,  1864. 

[The  draft  of  the  bill  above  referred  to  was  presented  in  the  Senate,  and 
referred  to  a  committee  ;  but  its  action  upon  the  subject  was  designedly 
postponed.] 

[No.  528.] 
Liability  of  Navy  Agents,  &c.,  to  Trial  by  Courts-Martial. 

The  Secretary  of  the  Navy,  by  G.  V.  Fox,  his  Assistant,  submits  to  the 
Solicitor  of  the  War  Department  the  following  question :  Whether  navy 
agents,  naval  storekeepers,  and  the  clerks  of  naval  storekeepers,  "  deliver 
ing  certificate  vouchers,  or  receipts,  without  having  full  knowledge  of  the 
truth  of  the  facts  stated  therein,  and  with  intent  to  cheat,  defraud,  or  injure 
the  United  States,"  are  subject  under  the  Act  (of  March  2,  1863),  or  any  other 
act,  to  the  rules  and  regulations  made  for  the  government  of  the  military  and 
naval  forces,  and  whether  they  are  subject  to  trial  by  courts-martial  ? 

OPINION. 

The  first  section  of  the  Act  passed  March  2,  1863,  refers  to  persons  in 
the  land  or  naval  forces  of  the  United  States,  or  in  the  "  militia  in  actual 
service."  The  navy  agents,  storekeepers,  and  their  clerks,  belong  to.  or 
are  classed  with  the  civil  establishment  at  the  navy  yards  and  stations,  hav 
ing  specific  duties  assigned  them  of  a  clerical  or  administrative  nature,  to 
be  performed  on  land,  under  instructions  from  the  Secretary  of  the  Navy, 
as  prescribed  by  statutes;  and  being  without  rank  or  command  over 
enlisted  men,  and  not  being  enlisted  as  in  the  naval  service,  are  not  held 
by  law  as  part  of  the  naval  forces,  and  therefore  are  not,  under  the  Act  of 


OPINIONS.  381 

1863  referred  to,  or  under  any  other  statute  known  to  me,  liable  to  trial  by 
a  court-martial  for  the  offences  specified. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
April  22,  1864. 

[No.  531.] 
Coin  on  the  Person  of  a  Public  Enemy  on  Land,  its  Liability  to  Capture. 

William  Price,  Esq.,  United  States  District  Attorney,  Baltimore,  writes 
to  Mr.  Whiting,  enclosing  an  opinion  of  Judge  Giles,  upon  the  right  of  the 
government  to  condemn  money  as  enemy's  property,  when  taken  from  the 
person  of  an  enemy  on  land,  in  our  own  territory.  The  Judge  decides 
against  the  right.  Mr.  Price  asks  whether  he  shall  take  an  appeal. 

OPINION. 

I  have  received  your  letter  of  the  22d  instant,  enclosing  a  copy  of  the 
decision  of  Judge  Giles  in  the  case  of  the  United  States  vs.  "  A  Canoe  and 
certain  Merchandise  and  Money,"  libelled  in  the  District  Court. 

It  appears  that  the  specie  found  upon  the  person  of  the  captured  rebel  is 
not  regarded  by  Judge  Giles  as  liable  to  condemnation,  because  the  statutes 
referred  to  as  those  upon  which  the  libel  was  brought,  viz.,  the  Acts  of  July 
13,  1861,  and  May  20,  1862,  do  not  provide  for  or  authorize  the  seizure 
or  confiscation  of  money,  but  only  of  merchandise,  goods  and  chattels,  and 
the  vehicles  conveying  them. 

The  Act  of  July  17,  1862,  is  referred  to  by  Judge  Giles  ;  but  he  says  that 
the  captured  rebel  is  not  "  shown  to  have  been  engaged  in  armed  rebellion," 
and  that  the  present  is  not  a  proceeding  under  that  Act. 

The  facts  in  the  case  are  but  briefly  stated  by  Judge  Giles ;  but  enough,  I 
think,  appears,  or  may  be  fairly  presumed  from,what  is  admitted,  to  make 
it  advisable  to  institute  some  new  proceeding,  based  upon  the  sixth  and 
seventh  sections  of  the  Act  of  July  17,  1862,  chapter  195,  and  also  upon  the 
4th  section  of  the  Act  of  March  12,  1863,  chapter  120. 

That  the  owner  of  this  gold  was  "  aiding  and  abetting  the  rebellion," 
even  if  he  was  not  actually  "engaged  in  armed  rebellion,"  can  hardly  be 
doubted  when  the  facts  connected  with  his  capture  are  fairly  considered  ;  and 
this  brings  him  within  the  terms  of  the  Act  of  1862. 

It  may  be  found,  upon  inquiry,  that  this  gold  was  brought  from  one  of 
the  States  declared  in  insurrection,  into  Maryland  ;  and  it  is  certain  that  the 
owner  was  not  a  Treasury  agent,  who  alone  under  the  statute  of  1863,  is 
authorized  to  bring  such  property  across  the  lines,  without  a  lawful  clear 
ance,  and  it  is  also  certain  that  he  had  no  such-  clearance.  If,  therefore, 
"  property,"  as  the  term  is  used  in  the  statute,  includes  specie,  and  if  the 


382  OPINIONS. 

gold  in  question  was  brought  from  Virginia,  as  may  be  presumed  from  the 
residence  of  the  owner,  if  no  evidence  to  the  contrary  be  adduced,  it  is  liable 
to  condemnation  under  section  4  of  the  statute  of  1863,  chapter  120. 

If  these  positions  appear  to  you  to  be  maintainable,  and  the  money  is  still 
where  Judge  Giles  ordered  it  to  be  placed,  or  where  it  can  be  reached  by 
process,  I  would  suggest  the  inquiry,  whether  it  would  not  be  well  to  take 
such  course  as  will  enable  you  to  obtain  the  judgment  of  the  court  upon 
this  view  of  the  facts  arid  law,  either  by  filing  a  new  libel,  or  otherwise,  as 
you  may  find  practicable  and  expedient. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
April  30,  1864. 

[No.  532.] 
Payment  of  Creditors'  Claims  out  of  Proceeds  of  Confiscated  Property. 

Messrs.  McGraw  and  Wills,  attorneys  for  the  creditors  of  C.  C.  Spaulding, 
request  payment  of  their  claims  out  of  the  proceeds  of  property  confiscated 
on  account  of  his  having  been  engaged  in  illegal  traffic  with  the  enemy. 

OPINION. 

When  the  property  of  public  enemies,  or  of  one  who  has  given  aid  and  com 
fort  to  public  enemies,  by  engaging  in  illegal  commerce  with  them,  has  been 
vested  in  the  United  States  by  capture,  forfeiture,  confiscation,  or  other 
process,  military  or  judicial,  there  is  no  provision  of  martial  or  of  muni 
cipal  law  by  which  the  government  is  required  or  allowed  to  distribute  the 
proceeds  of  that  property  among  those  who  may  have  pecuniary  claims 
against  such  enemies  or  such  delinquents.  The  law  requires  such  proceeds 
to  be  otherwise  appropriated. 

I  therefore  recommend  the  Secretary  of  War  to  decline  action  on  the 
petition.  , 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
May  4,  1864. 

[See  also,  on  the  same  subject,  the  case  of  Tracy  Irwin  &  Co.     No.  1437.] 

[No.  535.] 
JAMES    SHEPPARD 

Claims  restoration  of  cotton  and  other  property  seized  upon  his  two 
plantations  near  Pine  Bluff,  on  the  Arkansas  River,  by  the  forces  of  the 
United  States  as  abandoned  property,  alleging  that  he  has  taken  the  oath 
of  amnesty,  and  has  always  been  a  Union  man,  and  that  his  plantations  in 
Arkansas  were  not  abandoned. 


OPINIONS. 


OPINION. 


383 


The  application  of  James  Sheppard,  lately  resident  in  Henrico  County, 
Va.,  for  the  restoration  of  certain  bales  of  cotton  claimed  by  him  as  the 
produce  of  his  plantations  in  Arkansas,  with  indorsements  filed  by  him  in 
support  of  his  claim,  and  also  the  application  of  W.  P.  Grace,  heretofore  re 
ferred  to  me,  claiming  the  same  cotton  by  purchase,  are  new  returned,  upon 
the  application  of  the  parties,  for  the  reason  that  the  property  is  now  said  to 
be  in  the  possession  of  an  agent  of  the  Treasury,  and  one  of  the  claimants 
wishes  that  it  may  be  sold,  and  that  his  claims  to  the  proceeds  may  be  con 
sidered  by  the  Treasury  Department.  To  this  course  I  see  no  objection, 
and  recommend  that  these  applications,  and  the  accompanying  documents, 
be  accordingly  transmitted  to  the  proper  officers  of  the  Treasury. 

In  this,  as  in  some  similar  cases,  I  have  hesitated  to  express  a  definite 
opinion,  in  advance  of  the  promulgation  of  some  general  rule  or  the 
adoption  of  some  uniform  policy  on  the  part  of  the  government  of  the 
United  States  in  relation  to  property  captured,  destroyed  or  damaged  in 
the  States  in  rebellion,  not  wishing,  on  the  one  hand,  to  discourage  per 
sons  who  might  be  thought  to  have  some  equitable  claims  to  a  liberal  or 
lenient  treatment,  if  such  should  seem  good  to  the  general  government,  or, 
on  the  other  hand,  to  put  any  obstacle,  however  slight,  in  the  way  of  the 
exercise  of  the  legal  rights  of  the  United  States  against  their  enemies,  if 
the  condition  of  the  country  during  the  war,  or  after  its  close,  should  render 
it  advisable  to  insist  upon  the  strict  enforcement  of  those  rights. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

August  5,  1864. 

[No.  707.] 
CLAIM  FOR  DAMAGE   TO   PROPERTY. 

The  Secretary  of  State  encloses  a  copy  of  a  communication  from  the  Brit 
ish  Minister,  presenting  the  claim  of  Mr.  Timothy  Dowling,  for  damages 
done  to  his  property  in  Vicksburg,  Mississippi,  by  persons  in  the  United 
States  service. 

OPINION. 

I  concur  in  the  opinion  of  the  Military  Commission,  which  examined  the 
case,  that  the  government  is  not  responsible  for  the  damages  claimed,  though 
for  reasons  widely  different  from  those  stated  by  the  Commission ;  I  do  not 
admit  that,  as  an  alien  permanently  resident  in  the  United  States,  the  com 
plainant  has  any  claim  for  indemnity  for  property  used  or  injured  in  the 
prosecution  of  the  war. 

Whether  a  private  claim  exists  against  Major  General  Ord,  and  the  officers 


384  OPINIONS. 

under  his  command,  as  assumed  in  the  finding  of  the  Commission,  it  is  not 
deemed  proper  to  express  an  opinion. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
July  25,  1864. 

[No.  713.] 
OATH  REQUIRED   OF  ALIENS. 

The  Hon.  Secretary  of  State  encloses  a  copy  of  a  communication  from  the 
British  Minister,  relative  to  an  objectionable  oath  exacted  from  foreigners 
in  the  Department  of  the  Gulf. 

OPINION. 

The  oath  required  of  alien  British  subjects  imposes,  upon  those  who 
take  it,  a  moral  obligation  to  observe  in  good  faith  Her  Majesty's  procla 
mation  of  neutrality,  and  to  do  nothing  directly  or  indirectly  to  aid  and 
comfort  the  enemies  of  the  United  States,  so  long  as  Great  Britain  and  the 
United  States  shall  remain  at  peace. 

To  open  to  foreign  commerce  the  port  of  New  Orleans,  during  the  prog 
ress  of  the  civil  war,  was  an  act  of  national  courtesy,  which  might  lawfully 
have  been  withheld  or  refused. 

Those  who  avail  themselves  of  the  act  may  justly  be  required  to  give  to 
this  government  assurance  of  the  sincerity  of  their  neutrality ;  and  they 
ought  not  to  avail  themselves  of  a  privilege  without  abandoning  any  inten 
tion  to  use  that  privilege  against  the  government  which  grants  it. 

Those  aliens  who  intend  to  become  enemies  of  the  United  States,  in  vio 
lation  of  Her  Majesty's  proclamation,  and  of  the  laws  of  nations,  ought  not 
to  be  permitted  to  enter  any  port  of  the  United  States  while  the  war  lasts. 

Those  who  take  the  oath  do  not  forfeit  thereby  any  right  guaranteed  by 
the  laws  of  England  or  by  the  laws  of  nations. 

In  any  event,  the  privilege  of  commercial  intercourse  may,  by  the  law  of 
nations,  be  restricted  in  time  of  war  by  the  United  States,  in  such  manner 
as  public  safety  requires,  and  the  required  oath  may  be  deemed  one  of  those 
restrictions. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

July  26,  1864. 

[No.  714.] 
ROMAIN  DUPRE. 

The  Hon.  Secretary  of  State  transmits  a  copy  of  a  note  from  the  Charge 
d' Affaires  of  France,  presenting  the  claim  of  Romain  Dupre  for  six  bales  of 
cotton  seized  on  his  plantation  in  Placquemine,  Louisiana,  by  Major  Ham 
ilton,  of  the  One  Hundred  and  Tenth  New  York  Volunteers. 


OPINIONS.  385 

OPINION. 

1.  It  is  not  sufficiently  shown  that  the  claimant  is  a  subject  of  France. 

2.  It  is  not  shown  that  the  claimant  does  not  come  within  the  provisions 
of  the  Act  of  February  24,  1864. 

3.  It  is  not  shown  that,  as  Dupre  was  a  permanent  resident  of  Louisiana, 
the  property  of  the  claimant  is  not  liable  to  capture  as  that  of  a  public 
enemy,  he  not  having  withdrawn  from  the  country  within  a  reasonable  .time 
after  the  war  broke  out. 

With  these  views,  the  Department  is  not  advised  to  act  upon  the  present 
information. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
July  28,  1864. 

[No.  723.] 
GENERAL  BANKS'S   ORDER  RESPECTING   GOLD. 

The  Hon.  Secretary  of  State  encloses  a  copy  of  a  communication  from  the 
British  Minister  relative  to  an  order  of  the  18th  ult.,  issued  by  Major  Gen 
eral  Banks,  respecting  gold,  requiring  it  to  be  deposited  under  supervision 
of  the  military  force  of  the  United  States. 

OPINION. 

The  order  of  General  Banks  has  been  found  necessary  for  the  purpose  of 
preventing  imported  gold  from  being  used  for  the  aid  and  comfort  of  the 
insurgents  against  the  United  States. 

It  is  a  matter  of  favor  on  the  part  of  the  United  States,  to  open  to  foreign 
commerce  any  port  which  has  been  effectually  blockaded,  especially  when 
the  introduction  of  gold  or  of  merchandise  may  be  prejudicial  to  the  inter 
ests  of  the  country,  by  giving  aid  and  comfort  to  its  public  enemy. 

Commerce  may  be  allowed,  with  or  without  restrictions,  to  the  subjects  of 
neutral  countries  in  time  of  civil  war,  according  to  the  necessities  of  the  case, 
and  certainly  without  infringement  of  any  treaty  between  the  United  States 
and  Great  Britain. 

It  would  be  extraordinary  if,  in  fact,  the  government  which  admits  the  im 
portation  of  foreign  gold  only  on  condition  that  neutrals  will  not  abuse  a 
privilege  extended  to  them  in  good  faith,  and  in  full  reliance  upon  their 
neutrality,  should  be  deprived  of  the  power  of  taking  proper  precautions 
for  the  preservation  of  that  good  faith,  and  for  its  own  protection  against 
the  misuse  of  that  privilege. 

All  that  is  required  of  importers  of  gold  is  the  temporary  deposit  of  it  in 
the  Treasury,  with  the  assurance  that  when  withdrawn,  it  shall  not  be  used 
illegally,  or  in  violation  of  the  neutral  obligations  of  its  owner. 

49 


386  OPINIONS. 

No  good  reason  is  presented  why  any  bona  fide  neutral  should  object  to 
this  order. 

But  whether  objected  to  or  not,  it  is  justifiable,  because  required  in  a  civil 
war  and  under  the  peculiar  circumstances  of  the  Department  in  which  New 
Orleans  is  situated,  as  a  necessary  safeguard  over  the  privilege  of  commerce 
extended  to  foreign  citizens  at  that  port. 

No  elaborate  argument  is  offered  to  vindicate  the  right  of  our  government 
to  make  and  enforce  the  order  of  General  Banks,  because  such  argument 
is  not  called  for.  Its  reasonableness  and  necessity  alone  are  shown,  and 
furnish  sufficient  grounds  for  its  justification. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 

July  28,  1864. 

[No.  730.] 
JOHN  H.    SOTHORON'S   CREDITORS. 

OPINION. 

In  the  matter  of  Benjamin  Adams  and  others,  alleged  creditors  of  John 
H.  Sothoron,  referred  to  me,  without  date,  it  appears  that  Sothoron  is  the 
secession  rebel  who,  with  his  son,  murdered  the  lieutenant  who  was  recruit 
ing  colored  men  on  his  farm,  in  St.  Mary's  County,  Maryland,  and  fled  to 
Richmond  ;  that  for  these  reasons  his  property  was  sequestered  and  used 
for  the  benefit  of  the  United  States. 

It  also  appears  that  subsequent  to  such  sequestration,  attachments  were 
issued,  at  the  instance  and  for  the  benefit  of  the  alleged  creditors  of  Sothoron, 
by  the  Circuit  Court  of  said  County  of  St.  Mary's  —  one  of  whom,  the  above- 
named  Benjamin  Adams,  had  violently  taken  sides  with  Sothoron. 

They  now  claim  that  these  attachments  constitute  a  lien  upon  said  prop 
erty,  entitled  to  priority,  and  that  the  decision  of  the  judicial  tribunal  should 
prevail  in  their  behalf,  without  prejudice  from  the  acts  of  sequestration  by 
the  government  of  the  United  States. 

In  this  state  of  facts,  I  am  of  the  opinion,  that, 

1.  One  of  the  claimants  is  disloyal,  if  not  an  active  enemy. 

2.  The  appropriation  of   Sothoron's   property  in  liquidating  his  debts, 
would  enure  to  his  benefit  as  effectually  as  restoration  thereof  to  himself. 

3.  The  sequestration,  being  commenced  before  the  attachment,  is,  in  any 
event,  a  prior  lien,  and  proceedings  under  the  same  must  take  precedence. 

4.  The  sequestration  is  a  process  authorized  and  required  by  the  statute, 
and  no  provision  is  made  by  law  for  payment  of  creditors'  claims  out  of  the 
estate  sequestered. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
July  26,  1864. 


OPINIONS.  387 

[No.  731.] 
ANTOINE   CAIRE. 

Claim  for  Cotton  seized. 

The  Secretary  of  State,  May  18,  1864,  encloses  a  translation  of  a  note  from 
the  French  Minister,  relative  to  a  claim  for  one  Antoine  Caire,  of  New  Or 
leans,  for  indemnity  for  188  bales  of  cotton  seized  by  Lieutenant-Colonel 
S.  B.  Holabird,  in  June,  1863. 

Referred,  July  21,  1864,  to  the  Solicitor  for  opinion. 

4 

OPINION. 

In  the  matter  of  Antoine  Caire,  an  alleged  French  subject,  referred  to  me 
on  the  21st  instant,  for  my  opinion  upon  the  validity  of  his  claim  presented 
through  the  Minister  of  France,  for  $43,261^,  the  estimated  value  of  188 
bales  of  cotton  said  to  have  been  purchased  by  him  on  the  7th  April,  1862, 
of  C.  W.  Allen,  planter,  residing  in  the  Parish  of  Pointe  Coupe'e,  Louisiana, 
and  taken  from  the  plantation  of  said  Allen  by  order  of  Colonel  S.  B.  Hol 
abird,  Chief  Quartermaster,  and  sold  under  his  authority  by  Prize  Commis 
sioner  George  E.  Tyler,  at  New  Orleans,  July  30, 1863,  I  am  of  the  opinion,— 

1.  Thai;  it  is  not  sufficiently  proved  that  the  claimant  is  a  subject  of  France, 
the  consular  certificate,  affirmed  in  his  affidavit  to  be  of  registry  at  New 
Orleans,  not  being  deemed  conclusive  proof,  inasmuch  as  the  character  of 
evidence  and  the  principles  governing  the  consul  as  to  the  nationality  of 
claimant,  are  not  known  to  the  Department,  and  cannot,  therefore,  bd  affirmed 
or  denied. 

2.  It  is  not  shown  that  the  claimant  does  not  come  within  the  provisions 
of  the  Act  of  February  24,  1864. 

3.  The  proof  of  ownership  is  not  made  out,  and  the  sale  may  be  not  bona 
fide,  as  the  terms  of  it  and  the  papers  which  passed,  are  not  produced. 

4.  The  question  whether  this  species  of  commerce  is  lawful,  under  the 
statutes  of  the  United  States,  cannot  be  settled,  on  the  facts  .stated,  without 
further  investigation. 

5.  It  is  not  shown  that  the  claimant  was  a  resident  of  Louisiana ;  if  he 
was,  it  does  not  appear  whether,  as  such  resident,  his  property  is  not  liable  to 
capture,   as  that  of  a  public  enemy,  he  not    having  withdrawn  from  the 
country  within  a  reasonable  time  after  the  war  broke  out. 

With  these  views,  the  Department  is  not  advised  to  act  on  present  infor 
mation. 

(Signed)  WILLIAM  WHITING, 

July  22,  1864.  Solicitor  of  the  War  Department. 


388  OPINIONS. 


[No.  935.] 
CASE   OF  GEORGE  CAMERON. 

The  Secretary  of  State,  by  letter  to  the  Secretary  of  War,  under  date  of 
October  6,  1864,  refers  to  a  note  from  the  Department  of  State,  of  the  1st 
instant,  and  its  accompaniments,  relative  to  the  case  of  George  Cameron,  now 
in  "  Prisoners'  Carnp  "  at  Elmira  ;  and  encloses  a  copy  of  a  note  of  the  21st 
ultimo,  from  J.  Hume  Bromly,  Esquire,  which  represents  that  said  Cameron 
was  forced  into  the  rebel  service,  under  his  written  protest  as  a  British  sub- 
jecjt ;  and  proposes  that  a  bond,  with  surety,  be  accepted  from  Cameron 
"  that  he  will  leave  the  country  for  Scotland,  and  not  return  to  the  South, 
or  in  any  way  aid  the  Confederates."  (See  717.) 

Received  by  the  Solicitor,  November  11,  1864. 

OPINION. 

George  Cameron  was  captured  as  a  prisoner  of  war,  at  Petersburg,  in 
arms  with  the  forces  of  the  Confederates.  He  now  asserts  that  he  is  a 
neutral  British  subject,  and  that  he  was  forced  into  the  rebel  service  against 
his  will.  His  assertion  is  not  accompanied  by  any  proofs. 

If  Mr.  Cameron  was  in  fact  a  neutral  British  subject  and  denizen  of  the 
Confederate  States,  at  the  commencement  of  our  civil  war,  he  had  a  right 
to  withdraw  from  the  belligerent  territory  within  a  reasonable  time,  and 
would  have  preserved,  by  such  withdrawal,  his  claim  to  be  regarded  as  a 
neutral  alien  by  the  United  States.  Having  voluntarily  remained  a  denizen 
of  the  Confederate  States,  and  having  thereby  subjected  himself  to  the  con 
trol  of  rebels  in  arms,  claiming  a  de  facto  right  to  enforce  their  municipal 
law,  he  has  lost  his  right  to  be  treated  by  the  United  States  as  a  subject  of 
Her  Majesty,  not  only  by  such  voluntary  continuance  of  residence,  but  by 
engaging  in  active  hostilities,  which  he  might  have  avoided  by  leaving  the 
country  in  due  season. 

Being  thus  captured  as  a  prisoner  of  war,  he  may  be  lawfully  held  or  ex 
changed  as  such  ;  but,  as  it  appears  from  his  own  statement  that  he  was 
forced  into  the  rebel  army  against  his  will  and  against  his  written  protest, 
and  as  he  is  willing  to  leave  the  United  States  to  go  to  Scotland,  not  to  return 
to  any  of  the  Confederate  States,  or  in  any  wise  to  aid  or  abet  the  rebellion  in 
the  United  States  or  elsewhere,  and  as  he  proposes  to  give  security  ac 
cordingly,  I  recommend  that  Mr.  Cameron  be  discharged,  provided  that  he 
shall  first  make  it  appear,  upon  satisfactory  evidence,  by  affidavits  or  other 
wise,  that  he  is  bonajide  a  British  subject,  and  was  compelled  to  take  up 
arms  on  behalf  of  the  rebels  against  his  will,  and  under  protest ;  and  further, 
that  he  shall  give  his  sworn  parole  not  to  aid  or  abet  the  rebellion  in  the 
United  States  or  elsewhere,  directly  or  indirectly,  or  any  person  or  persons 
sympathizing  therewith,  and  to  proceed  with  reasonable  despatch  to  Scotland, 


OPINIONS.  389 

and  not  to  return  to  any  State  in  rebellion  during  the  present  war,  and  pro 
vided  also  that  he  shall  give  bond  in  the  sum  of  fifteen  thousand  dollars, 
with  two  sureties,  approved  by  the  Attorney  of  the  United  States,  in  the 
Southern  District  of  New  York,  for  the  faithful  keeping  of  his  parole. 
(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 
November  15,  1864. 

[No.  951.] 

Claim  of  Cowen  &  Dickinson  for  Indemnity  for  Two  Hundred  and  Fifty -six 
(256)  Bales  of  Cotton,  taken  by  the  United  States  Forces,  for  Use  on  the 
Fortifications  at  Knoxville,  during  the  Siege  of  that  City. 

Referred  to  the  Solicitor  "  for  his  opinion  as  to  the  validity  of  this  claim 
against  the  United  States ;  and  also  whether  there  be  any  existing  appro 
priation  out  of  which  it  can  be  paid." 

November  30,  1864. 

OPINION. 

It  is  one  of  the  belligerent  rights  of  the  army  to  capture,  seize,  and  use 
in  prosecution  of  the  war,  cotton,  as  well  as  any  other  personal  property 
belonging  to  the  inhabitants  of  districts  which  have  been  declared  in  rebel 
lion  by  the  Political  Departments  of  this  government. 

The  owners  thereof,  whether  loyal  or  disloyal  to  the  Union,  are  deemed 
in  law  as  public  enemies,  and  therefore  they  are  not,  by  any  existing  stat 
ute,  entitled  to  payment,  at  this  time,  for  property  so  seized  or  captured. 
What  provision,  if  any,  shall  hereafter  be  made  for  payment  to  those  who, 
being  loyal,  shall  have  held  themselves  aloof  from  the  rebellion,  or  to  those 
who  shall  have  supported  the  Union,  must  be  hereafter  determined  by  the 
government. 

The  facts  in  this  case,  as  to  the  loyalty  of  Messrs.  Cowen  &  Dickinson, 
and  their  alleged  losses,  and  as  to  the  actual  disposition  made  of  their  cot 
ton,  are,  upon  the  evidence,  left  somewhat  in  doubt ;  but  if  they  were  fully 
established,  as  stated,  there  is  no  statute  of  the  United  States,  and  no  exist 
ing  appropriation,  by  virtue  of  which  their  claim  can  now  be  paid. 

I  therefore  recommend  that  this  Department  take  no  further  action  in 
regard  to  said  claim. 

(Signed)  WILLIAM  WHITING, 

Solicitor  of  the  War  Department. 


December  12,  1864. 


[No.  1437.] 

TRACY  IRWIN  &  CO. 
See  No.  532. 


NOTES    TO    THE    FORTY-THIRD    EDITION. 


[No.  I.] 
WAR  POWERS. 

War  Powers  under  the  Constitution  used  by  the  Government  in  suppressing 
tlie  Rebellion,  and  recognized  by  the  Judicial  Department. 

(1.)  In  case  of  insurrection,  the  President,  as  commander-in-chief  of  the 
army  and  navy  (Const.  Art.  II.  Sect.  2),  may  call  into  actual  service  the  mil 
itary  and  naval  forces  of  the  United  States,  in  accordance  with  the  laws  of 
Congress  (Const.  Art.  I.  Sect.  8). 

(2.)  Congress  may  by  law  provide  for  raising  forces  by  enlistments  into 
the  regular  army  and  navy,  or  into  the  volunteer  service  of  the  United  States., 
or  by  mustering  into  that  service  the  militia  of  the  several  States,  or  by  draft 
or  conscription  of  all  persons  who  are  liable  to  do  military  duty. 

(3.)  If  the  insurrection  shall  be  suppressed  without  a  declaration  or  recog 
nition  of  war,  by  the  political  departments  of  the  government,  the  insurgents 
will  retain  their  constitutional  rights,  privileges,  and  immunities  as  citizens 
of  the  United  States,  subject  only  to  punishment  for  violation  of  municipal 
laws. 

(4.)  If  the  insurgents  acquire  firm,  exclusive  military  possession  and  con 
trol  over  a  district  of  the  country,  the  government  may  declare  or  recognize 
a  state  of  civil  war,  and  may,  thereupon,  lawfully  assume  and  enforce  the 
rights  of  war  against  all  the  inhabitants  of  that  district ;  and  may  treat  them, 
individually  or  collectively,  at  its  own  will  and  pleasure,  as  subjects,  or  as 
belligerents  ;  or  it  may  concede  to  them  certain  belligerent  rights  and  with 
hold  others. 

(5.)  When  a  state  of  civil  war  is  recognized  or  declared  by  the  govern 
ment,  the  privilege  of  the  writ  of  habeas  corpus  may  be  wholly  or  partially 
suspended  by  acts  of  Congress.  Martial  law  may  be  declared  and  enforced 
in  certain  districts  and  under  certain  circumstances.  All  communication 
with  the  belligerents  may  be  suspended  and  made  unlawful,  whether  for  the 
purposes  of  commerce  or  otherwise,  and  many  rights,  privileges,  and  iinmu- 

(390) 


NOTES    TO    THE   FORTY-THIRD    EDITION.  391 

nities  guaranteed  by  the  constitution  to  loyal  citizens  in  time  of  peace  may 
then  be  suspended  by  law  without  violating  those  guarantees. 

(6.)  Even  if  the  government  has  declared  or  recognized  a  state  of  civil 
war,  it  is  not,  therefore,  bound  to  concede  or  to  use  its  belligerent  rights  ; 
it  may,  at  its  discretion,  treat  its  revolted  subjects  as  insurgent  criminals, 
who  have  incurred  the  penalties  of  municipal  laws.  In  that  case,  they  may 
be  held  liable  under  our  statutes  to  trial  and  punishment  for 

(a.)   Treason  against  the  United  States. 

(&.)    For  misprision  of  treason. 

(c.)    For  exciting,  engaging  in,  or  giving  aid  and  comfort  to  the  rebellion. 

(d.)   For  violation  of  blockades  or  of  non-intercourse  acts ;   and, 

(e.)    For  breach  of  other  laws  of  the  United  States. 

Such  insurgents  become  also  liable  to  the  penalties  of  confiscation  acts,  and 
to  arrest,  capture,  or  imprisonment  by  our  military  forces  during  the  war. 
If  they  have  slain  their  enemy  in  battle,  they  are  indictable  for  manslaughter 
or  murder  ;  if  they  have  inflicted  wounds  upon  him,  they  are  subject  to  pros 
ecution  for  assault  with  intent  to  kill.  If,  as  seamen  on  board  a  rebel 
cruiser,  they  have  attacked  a  United  States  vessel,  they  may  be  convicted 
of  piracy.  They  are  also  responsible,  individually,  in  civil  actions  for  all 
damages  inflicted  by  them  upon  the  persons  or  property  of  other  citizens. 
The  fact  that  in  violating  laws  they  were  acting  under  military  orders  of  a 
de  facto  rebel  government,  then  at  war  with  ours,  will  not  be  a  legal  defence 
to  such  actions.  They  will  also  be  amenable  to  all  penal  laws  of  Congress 
not  prohibited  by  the  constitution. 

(7.)  When  the  government,  having  recognized  or  declared  any  district  of 
the  country  to  be  in  the  status  of  civil  war,  has  determined  to  exercise  its 
belligerent  powers,  it  has  the  constitutional  right  to  treat  all  the  inhabitants 
of  that  district  as  public  enemies  of  the  United  States,  and  $p  subject  them 
to  the  rules  of  war.  By  acts  of  Congress  it  may  forbid  to  such  public  en 
emies  all  intercourse  between  them  and  the  people  of  the  loyal  states,  and 
may  repeal  all  laws  by  which  seaports  in  rebel  districts  have  been  designated 
ports  of  entry  under  our  revenue  system.  The  President,  as  commander-in- 
chief  of  our  military  and  naval  forces,  may  declare  and  maintain  blockades 
of  enemy  seaports  under  the  law  of  nations. 

(8.)  The  property  of  insurgents,  recognized  as  public  enemies,  may  be 
captured  on  the  ocean,  or  on  navigable  waters,  as  prize  of  war,  and  may  be 
condemned  as  such  in  our  prize  courts,  their  personal  property  on  land  may  be 
destroyed  by  our  military  or  naval  forces,  it  may  be  used  by  the  captors  for  war 
purposes,  it  may  be  seized  and  confiscated  under  confiscation  acts,  or  it  may 
be  captured,  and  used  or  sold,  or  appropriated  for  the  public  benefit  in  any 
manner  which  may  be  provided  for  by  laws  of  Congress,  without  indem 
nity.  The  slaves  of  public  enemies  may  be  captured  and  freed,  or  eman 
cipated.  Their  lands  situated  within  the  jurisdiction  of  the  United  States 
may  be  seized  and  held,  and  used  by  the  government  during  the  war,  or 


392  NOTES    TO    THE   FORTY-THIRD    EDITION. 

may  be  confiscated,  and  sold  for  the  benefit  of  the  United  States,  in  accord 
ance  with  the  laws  of  Congress. 

(9.)  Our  public  enemies  are  subject  to  martial  and  military  law.  They 
may  be  captured  as  prisoners  of  war,  or  wounded,  or  slain  in  battle.  They 
may  be  tried  by  courts  martial,  or  by  military  commissions.  They  may  be 
held,  after  active  hostilities  have  ceased,  as  prisoners  of  war,  as  captives, 
or  as  a  conquered  people.  They  may  be  controlled  by  military  governments, 
erected  by  the  President,  as  commander-in-chief,  while  the  war  is  flagrant ; 
and,  when  hostilities  have  ceased,  by  military  or  civil  governments,  erected 
in  accordance  with  the  laws  of  Congress. 

(10.)  As  public  enemies,  they  are  entitled  only  to  the  rights  of  war,  and 
therefore  hold  no  civil  or  political  rights  under  the  Constitution,  as  citizens 
of  the  United  States. 

(11.)  Whether,  when,  and  on  what  terms  peace  shall  be  restored,  de 
clared,  or  recognized,  depends  upon  the  will  of  the  political  department  of 
government,  which  alone  has  the  power  to  declare  war,  and  make  peace. 

(12.)  Whether  any  of  the  civil  or  political  rights  guaranteed  to  citizens 
of  the  United  States,  under  the  Constitution,  in  time  of  peace,  shall  be  re 
stored  to  ihe  public  enemies  of  the  country,  will  depend  upon  the  will  and 
pleasure  of  Congress,  which  has  the  power  to  withhold  them,  or  to  restore 
them,  upon  whatever  terms  or  conditions  it  may  prescribe  by  law. 

(13.)  The  judicial  department,  which  now  consists  of  the  Supreme, 
Circuit,  and  District  Courts,  is  bound  by  the  Constitution  to  follow,  respect, 
and  conform  to  the  decisions  of  the  political  departments  of  the  govern 
ment  upon  all  political  questions,  and  to  declare  and  administer  the  law  in 
accordance  therewith.  Among  these  political  questions,  the  most  important 
are  these,  viz.  When  civil  war  shall  be  declared  or  recognized;  when, 
and  on  what  tej:ms  and  conditions,  peace  shall  be  declared  or  recognized ; 
whether,  and  on  what  terms,  the  insurgents  may  be  restored  to  their  original 
constitutional  relations  to  the  government? 

When  civil  war  has  been  declared  or  recognized,  and  when  the  inhabitants 
of  a  portion  of  the  country  have  been  lawfully  declared  or  recognized  as 
public  enemies,  the  courts  of  the  United  States  have  no  authority  to  treat 
any  inhabitant  of  that  portion  of  the  country  otherwise  than  as  a  public 
enemy.  Such  courts  are  by  law  closed  against  enemies  of  the  country, 
who,  having  lost  all  civil  and  political  rights  in  or  against  our  government, 
have  no  lawful  authority,  so  long  as  they  retain  that  character  or  legal 
status,  to  appear  or  to  act  in  our  judicial  tribunals  as  judges,  officers, 
lawyers,  suitors,  or  claimants. 

(14.)  The  political  departments  may  extend  pardons,  amnesty,  or  res 
toration  of  personal,  civil,  or  political  rights  to  all  enemies  according  to  law. 
The  courts  are  bound  to  recognize  and  apply  the  decisions  of  these  depart 
ments  to  all  cases  and  persons  affected  by  them. 


NOTES   TO    THE   FORTY-THIRD    EDITION.  393 


[No.  2.    Preface,  p.  v.,  and  pp.  28-132.] 

OT    At7tT'~DV 


SLAVERY 


A  brief  Sketch  of  the  Laws  of  Congress,  the  Acts  of  the  Executive,  and  the 
Amendments  of  the  Constitution,  l>y  which  Slavery  has  been  terminated  in 
the  United  States,  and  Civil  and  Political  Eights  have  been  guaranteed  to 
all  Citizens,  without  Distinction  of  Color,  Race,  or  previous  Condition  of 
Slavery. 

As  slavery  was  the  prime  cause  of  rebellion,  any  further  toleration  of  it 
seemed  inconsistent  with  the  preservation  of  our  government.  Hence  it 
was  one  of  the  leading  objects  of  the  author  to  prove  that,  by  virtue  of  the 
powers  devolved  upon  the  President  and  upon  Congress  by  the  existence 
of'  civil  war,  they  had,  for  the  first  time  since  the  formation  of  the  Union, 
an  unquestionable  right  to  give  freedom  to  slaves,  without  violating  any 
clause  of  the  Constitution.  In  the  preceding  essays,  several  modes  of 
accomplishing  this  object  were  indicated,  of  which  either  one  or  all  might 
be  rightfully  adopted  in  accordance  with  principles  sanctioned  by  jurists 
and  publicists  of  the  highest  authority,  on  questions  of  international  law  as 
applied  to  cases  of  civil. war. 

At  the  present  time  (A.  D.  1870),  after  a  lapse  of  more  than  eight  years 
since  the  publication  of  the  first  edition  of  the  "  War  Powers,"  a  brief 
reference  to  the  most  important  measures  by  which  slavery  has  been  actu 
ally  overthrown  and  extirpated,  will  show  how  far  the  legal,  political,  and 
constitutional  principles  advocated  in  this  work  have  received  the  subse 
quent  indorsement  and  approval  of  the  several  departments  of  our  govern 
ment. 

Just  before  the  rebellion  broke  out,  Congress  had  passed,  by  a  unanimous 
vote,  the  following  declaratory  resolution  :  — 

"  Resolved,  That  neither  the  Federal  government,  nor  the  people,  nor  the 
governments  of  the  non-slaveholding  States,  have  the  right  to  legislate  upon, 
or  interfere  with,  slavery  in  any  of  the  slaveholding  States  in  the  Union." 

The  sacrifice  to  slavery  demanded  as  a  prelude  to  rebellion  by  the  south 
ern  leaders  of  the  democratic  party,  which  then  had  control  of  the  govern 
ment,  a  sacrifice  which  was  actually  submitted  to  by  republicans,  in  hope  of 
saving  the  Union  by  averting  the  calamities  of  war,  is  recorded  in  the  joint 
resolution  which  passed  the  Senate,  24  to  12,  and  the  House,  133  to  65,  on 
the  2d  of  March,  1861.  It  was  in  these  terms :  — 

"  That  the  following  articles  be  proposed  to  the  legislatures  of  the  several 
States,  as  an  amendment  to  the  Constitution  of  the  United  States,  which, 
when  ratified  by  three  fourths  of  said  legislatures,  shall  be  valid,  to  all  in 
tents  and  purposes,  as  part  of  the  said  Constitution. 

"  ART.  XIII.  No  amendments  shall  be  made  to  the  Constitution  which  will 
authorize  or  give  to  Congress  the  power  to  abolish  or  interfere,  within  any 

-60 


394  NOTES    TO    THE    FORTY-THIRD    EDITION. 

State,  with  the  domestic  institutions  thereof,  including  that  of  persons  held 
to  labor  or  service  by  the  laws  of  said  States." 

The  attack  of  the  rebels  upon  Fort  Sumter,  on  the  14th  of  April,  1861, 
put  an  end  to  all  further  movements  of  leading  republicans  of  the  free  States 
in  Congress,  tending  to  the  perpetuation  of  slavery. 

On  the  20th  of  July,  1861,  Mr.  Trumbull,  of  Illinois,  chairman  of  the 
Senate  committee  on  the  judiciary,  reported  a  bill  by  order  of  that  com 
mittee,  to  confiscate  the  property  used  for  insurrectionary  purposes.  He 
afterwards  offered  an  additional  section  as  an  amendment,  which  provided 
for  the  forfeiture  of  all  "  claims  to  labor  or  service,"  under  State  laws,  of 
slaves  employed  in  aiding  or  promoting  insurrection.  This  amendment 
passed  the  Senate  by  a  vote  of  33  to  6.  In  the  House,  on  the  3d  of  August, 
1861,  the  bill  was  reported  by  Mr.  Bingham,  from  the  committee  on  the 
judiciary,  with  an  amended  section,  which  was  more  effective,  and  secured 
forfeiture  of  and  freedom  to  all  slaves  who  should  thereafter  be  required  or 
permitted  by  their  masters  to  do  any  work  in  or  on  any  fort,  navy  yard, 
dock,  armory,  ship,  or  intrench ment,  or  in  any  military  or  naval  service 
whatever,  against  the  government  and  lawful  authority  of  the  United  States. 
This  amendment  was  adopted  ;  ayes  53,  nays  42 ;  and  the  bill  passed  the 
House ;  yeas  60,  nays  48 ;  and  as  amended  passed  the  Senate,  and  was 
approved  August  6,  1861.  (Chap.  60.) 

Mr.  Eliot,  of  Massachusetts,  December  2,  1861,  introduced,  on  leave,  a 
joint  resolution  setting  forth  that,  while  we  disclaim  all  power  under  the 
Constitution  to  interfere  by  ordinary  legislation  with  the  institutions  of  the 
States,  yet  the  war  now  existing  must  be  conducted  according  to  the  usages 
and  rights  of  military  service.  "  That,  therefore,  we  do  hereby  declare  the 
President  as  commander-in-chief  of  our  army,  and  the  officers  under  him  have 
the  right  to  emancipate  all  persons  held  as  slaves  in  any  military  district  in 
a  state  of  insurrection  against  the  national  government ;  and  that  we  re 
spectfully  advise  that  such  order  of  emancipation  be  issued,  whenever  the 
same  will  avail  to  weaken  the  power  of  the  rebels  in  arms,  or  to  strengthen 
the  military  power  of  the  loyal  forces."  This  resolution  was  rejected  by 
Congress. 

December  5,  Mr.  Trumbull,  of  Illinois,  introduced  a  bill  into  the  Sen 
ate,  which  provided  that  the  slaves  of  persons  who  should  take  up  arms 
against  the  United  States,  or  in  any  manner  aid  or  abet  the  rebellion,  should 
be  made  free. 

December  11,  Mr.  Morrill,  of  Maine,  introduced  into  the  Senate  a  joint 
resolution  to  confiscate  the  property  of  rebels  and  satisfy  the  just  claims  of 
loyal  persons.  This  also  provided  for  the  freedom  of  slaves  of  rebels  op 
posed  to  the  government.  Several  other  bills,  resolutions,  and  amendments 
were  offered  by  senators,  all  having  the  same  general  object,  and  the  same 
limitations.  All  these  bills  and  resolutions  were  referred  to  a  committee. 
In  the  House  Mr.  Eliot's  joint  resolution  and  various  other  measures  were 


NOTES    TO    THE    FORTY-THIRD   EDITION.  395 

in  like  manner  referred  to  a  committee  of  the  House,  of  which  Mr.  Eliot 
was  a  member.  Subsequently,  by  unanimous  consent  of  the  House,  he 
introduced  two  bills,  of  which  one  was,  "  To  "confiscate  the  property  of 
rebels  for  the  payment  of  the  expenses  of  the  present  rebellion,  and  for 
other  purposes  ;  "  the  other  was  a  bill  to  free  from  servitude  the  slaves 
of  rebels  engaged  in  abetting  the  existing  rebellion  against  the  government 
of  the  United  States.  These  bills,  having  been  referred  to  a  committee, 
were  reported  back  on  the  20th  of  April,  1862,  and  were  then,  and  for  sev 
eral  succeeding  days,  debated  in  the  House.  Mr  Sedgwick,  of  New  York, 
offered  an  amendment  which  made  it  the  duty  of  every  commanding  officer 
of  a  naval  or  military  department  within  any  portion  of  the  rebel  States,  by 
proclamation,  or  in  some  other  way,  to  invite  all  slaves  to  come  within  our 
lines  and  to  be  enrolled  in  the  service  of  the  United  States.  "  And  by  that," 
he  said,  "  I  mean  any  service  they  can  render,  civil  or  military  ;  and  that  it 
shall  be  the  duty  of  such  commanding  officer  to  enroll  every  such  person, 
and  employ  such  of  them  as  may  be  necessary  in  the  service  of  the  United 
States,  and  to  reward  these  services  with  freedom  to  them  and  to  their  de 
scendants  forever.  I  include  in  that  the  slaves  not  only  of  rebels,  but  of 
persons  claiming  to  be  loyal ;  but  I  propose  for  these,  compensation,  and  I 
also  propose  compensation  for  the  services  of  all  such  as  may  be  claimed  by 
widows  and  minors."  This  amendment  of  Mr.  Sedgwick  received  only 
thirty-two  votes,  while  negative  votes  were  one  hundred  and  sixteen. 

After  these  confiscation  and  partial  emancipation  measures  had  passed 
through  an  unusual  variety  of  transformations,  they  came  before  a  commit 
tee  of  conference  between  the  House  and  Senate,  which  filially  reported  in 
substance  the  Senate  amendment  prepared  by  Mr.  Clark,  of  New  Hamp 
shire,  which  combined  the  confiscation  and  emancipation  measures  in  one 
bill,  and  this  received  the  approval  of  the  President  July  17,  1862.  (Chap.  19<3.) 
This  act  provides  that  slaves  of  persons  who  gave  aid  and  comfort  to  the 
rebellion,  refugees  to  our  lines,  slaves  captured  from  or  those  deserted  by 
rebels,  slaves  found  by  our  troops  in  places  which  had  been  held  by  rebels, 
should  be  deemed  captives  of  war,  and  be  made  free;  that  fugitive  slaves 
should  not  be  returned  to  rebel  masters  ;  that  our  military  officers  should 
not  return  fugitive  slaves  even  to  loyal  owners  ;  and  that  the  President  might 
employ  persons  of  African  descent  for  the  suppression  of  the  rebellion,  &c. 
This  act  was  confined  to  slaves  who  might  be  deemed  captives  of  war ;  and 
to  them  alone  it  gave  freedom. 

December  16,  1861,  Mr.  Wilson,  of  Massachusetts,  introduced  a  bill  into 
the  Senate  "  for  the  release  of  certain  persons  held  to  service  or  labor  in 
the  District  of  Columbia."  It  passed  the  Senate  April  3,  1862,  and  the 
House,  92  to  39,  April  11,  and  was  approved  April  16,  1862.  (Acts  of  1862, 
Chap.  54.) 

On  the  23d  of  December,  1861,  Mr.  Wilson,  of  Iowa,  introduced  a  reso 
lution,  "  That  the  committee  on  military  affairs  be  requested  to  report  a 


396  NOTES    TO    THE    FORTY-THIRD    EDITION. 

bill  to  this  House  for  the  enactment  of  an  additional  article  of  war,  where 
by  all  officers  in  the  military  service  of  the  United  States  should  be 
prohibited  from  using  any  portion  of  the  forces  under  their  respective  com 
mands  for  the  purpose  of  returning  to  their  masters  fugitives  from  service 
or  labor,  and  to  provide  for  the  punishment  of  such  officers  as  may  violate 
said  article  by  dismissal  from  the  service."  A  bill  was  accordingly  reported 
and  passed,  and  was  approved  March  13,  1862.  (Chap.  40.) 

President  Lincoln  recommended  in  his  Message  of  March  6,  1862,  to 
Congress,  the  adoption  of  a  resolution,  "  That  the  United  States  ought  to 
cooperate  with  any  State  which  may  adopt  gradual  abolishment  of  slavery, 
giving  to  such  State  pecuniary  aid,  to  be  used  by  such  State  in  its  discre 
tion,  to  compensate  for  the  inconveniences,  public  and  private,  produced  by 
such  change  of  system." 

March  10,  1862,  Mr.  Conkling,  of  New  York,  asked  leave  to  introduce 
into  the  House  a  joint  resolution  to  that  effect.  Leave  was  granted,  and 
the  resolution,  having  been  introduced,  passed  the  House  March  11  (89  to  31). 
On  the  2d  of  April  it  passed  the  Senate  (32  to  10) ;  and  was  approved  April 
10,  1862.  (Joint  Res.  No.  26.) 

Mr.  Arnold,  of  Illinois,  introduced  into  the  House,  March  24,  1862,  a  bill 
to  prohibit  slavery  in  the  territories  of  the  United  States.  It  was  reported 
back  from  the  committee  on  territories,  to  whom  it  had  been  referred,  with 
amendments,  and  was  passed  by  the  House,  May  12  (85  to  50).  In  the 
Senate,  the  bill  was  referred  to  the  committee  on  territories,  and  amended 
by  striking  out  all  after  the  enacting  clause,  and  inserting,  "  That  from  and 
after  the  passage  of  this  act,  there  shall  be  neither  slavery  nor  involuntary 
servitude  in  any  of  the  territories  of  the  United  States,  now  existing,  or 
which  may  at  any  time  hereafter  be  formed  or  acquired  by  the  United  States, 
otherwise  than  in  punishment  of  crimes,  whereof  the  party  shall  have  been 
duly  convicted."  This  bill,  so  amended,  passed  the  Senate  (28  to  10)  on  the 
9th  of  June,  1862,  and  on  the  17th  passed  the  House,  and  was  approved 
June  19,  1862.  (Chap.  111.) 

By  a  bill  which  was  introduced  by  Mr.  Grimes,  of  Iowa,  April  29,  1862, 
the  school  tax  on  property  of  colored  persons  residing  in  the  District  of 
Columbia,  which  had  previously  been  expended  in  maintenance  of  schools 
for  white  children,  was  to  be  in  future  applied  to  maintain  schools  for 
colored  children  ;  and  by  an  amendment  proposed  by  Mr.  Wilson,  of  Mas 
sachusetts,  persons  of  color  in  that  district  were  placed  on  the  same  footing 
with  white  persons  as  to  their  laws,  trials  for  offences,  and  punishment  for 
crimes.  This  act  was  approved  May  21,  1862.  (Chap.  83.) 

June  12,  1862,  Mr.  Sumner  introduced  a  bill  to  carry  into  effect  the  treaty 
with  Great  Britain  for  the  suppression  of  the  slave  trade.  This  was  ap 
proved  July  1,  1862. 

June  23,  1862,  Mr.  Lovejoy,  of  Illinois,  introduced  a  bill  to  provide  for 
the  inauguration  in  the  District,  of  a  system  of  public  schools  for  the  edu- 


NOTES    TO    THE    FORTY-THIRD    EDITION.  397 

cation  of  colored  youth  ;  creating  a  board  of  trustees,  who  possess  tne  same 
powers  in  relation  to  colored  children  as  the  trustees  of  public  schools 
in  Washington  and  Georgetown.  This  bill  was  approved  July  11,  1862. 
(Chap.  151.) 

July  8,  1862,  Mr.  Foster,  of  Connecticut,  introduced  a  bill  authorizing  the 
President  to  make  certain  humane  provisions  for  persons  of  color,  delivered 
from  on  board  vessels  seized  in  the  prosecution  of  the  slave  trade  by  com 
manders  of  United  States  vessels.  This  was  passed,  and  approved  July  17, 
1862. 

An  additional  act,  introduced  by  Mr.  Wilson,  of  Massachusetts,  and 
amend-ed  on  motions  of  Mr.  Grimes  and  Mr.  Sumner,  to  remove  some  of  the 
vestiges  of  slavery  in  the  District,. was  approved  July  12,  1862.  It  provides, 
among  other  things,  that  slaves  employed  in  the  District  after  April  16,  1862, 
shall  be  free  ;  and  that  color  shall  not  exclude  witnesses  in  any  judicial  pro 
ceedings  of  the  courts  of  the  District.  (Chap.  155.) 

July  8,  1862,  Mr.  Wilson,  of  Massachusetts,  reported  from  the  committee 
on  military  affairs  a  bill  to  "  amend  the  act  of  February  28,  1795,  for  calling 
forth  the  militia  to  execute  the  laws  of  the  Union,  suppress  insurrection,  and 
repel  invasion."  Mr.  Grimes,  of  Iowa,  moved  to  amend  it  by  adding  provis 
ions  that  there  should  be  no  exemption  from  military  duty  on  account  of 
color ;  that  when  the  militia  should  be  called  into  service,  the  President 
should  have  full  power  and  authority  to  organize  them  according  to  race  and 
color.  Mr.  King,  of  New  York,  moved  to  strike  out  the  first  two  sections 
of  Mr.  Grimes's  amendment,  and  to  insert  two  new  sections :  — 

"  That  the  President  be,  and  he  is  hereby,  authorized  to  receive  into  the 
service  of  the  United  States,  for  the  purpose  of  constructing  intrenchments 
or  performing  camp  service,  or  any  other  labor,  or  any  war  service  for  which 
they  may  be  found  competent,  persons  of  African  descent ;  and  such  per 
sons  shall  be  enrolled  and  organized  under  such  regulations,  not  inconsistent 
with  the  constitution  and  laws,  as  the  President  may  prescribe  ;  and  they 
shall  be  fed,  and  paid  such  compensation  for  their  services  as  they  may  agree 
to  receive  when  enrolled. 

"  That  when  any  man  or  boy  of  African  descent  shall  render  any  such 
service  as  is  provided  for  in  the  first  section  of  this  act,  he,  his  mother,  and 
his  wife  and  children  shall  forever  thereafter  be  free,  any  law,  usage,  or  cus 
tom  whatsoever  to  the  contrary  notwithstanding." 

A  violent  and  continuous  discussion  arose  upon  this  bill  between  those 
who  would  have  colored  persons  introduced  as  soldiers  into  our  army  and 
those  opposed  to  that  measure,  although  there  was  but  little  objection  to 
their  employment  as  laborers.  This  bill  was  passed  and  approved  July  17, 
1862.  (Chap.  201.)  And  under  it,  for  the  first  time  in  the  history  of  this  coun 
try  since  the  adoption  of  the  Constitution,  persons  of  African  descent  could, 
by  law  of  Congress,  be  introduced  into  the  military  service  as  soldiers.  They 
were  by  subsequent  acts  required  to  be  enrolled  in  the  same  manner  as  white 
men,  and  were  made  part  of  the  militia  of  the  United  States.  Their  pay  — 
which  was  at  first  ten  dollars  per  month,  and  rations,  and  the  freedom  of 


398  NOTES    TO    THE   FORTY-THIRD    EDITION. 

themselves,  and  under  certain  conditions  the  freedom  of  their  families,  was, 
by  subsequent  acts,  equalized  with  that  of  other  soldiers  from  and  after  Jan 
uary  1,  1864.  (See  Note  on  the  laws  for  raising  and  organizing  military 
forces,  p.  478.) 

On  the  17th  of  February,  1863,  Mr.  Wilson,  of  Massachusetts,  introduced 
a  bill  to  incorporate  "  an  institution  for  the  education  of  colored  youth,"  to 
be  located  in  the  District  of  Columbia  ;  and  it  passed  the  Senate  (29  to  9),  and 
having  on  the  2d  of  March  passed  the  House,  was  approved  March  3,  1863. 

June  25,  1864,  the  President  approved  an  act  which  made  it  the  duty  of 
the  school  commissioners  in  the  District  to  establish  public  schools  for  col 
ored  children,  to  provide  school-houses,  to  employ  teachers,  and  to  appro 
priate  a  proportion  of  the  school  fund,  to  be  determined  by  the  number  of 
white  and  colored  children  between  the  ages  of  six  and  seventeen  years. 
About  thirty-five  hundred  colored  children  obtained  by  this  law  the  same 
privileges  as  white  ones  in  public  schools  at  Washington  and  Georgetown. 

One  of  the  important  acts  of  Congress  was  that  by  which  the  Freedman's 
Bureau  was  established  under  the  war  power  of  the  government.  The  bill 
to  erect  a  bureau  for  freedmen  and  refugees  was  first  introduced  into  the 
House  by  Mr.  Eliot,  of  Massachusetts,  December,  1863.  It  passed  the 
House,  but  failed  in  the  Senate.  In  1864  it  was  again  brought  forward, 
with  some  amendments,  and  was  passed  ;  and  was  approved  March  3,  1865. 
(For  Letter  of  Mr.  Eliot,  relating  to  the  act,  see  Note  No.  9,  page  464.) 

Of  all  measures  taken  by  Congress  in  relation  to  slavery,  the  most  im 
portant  was  the  resolution  for  submitting  to  the  States  a  proposition  to 
amend  the  Constitution  by  prohibiting  slavery  forever.  On  the  14th  De 
cember,  1863,  Mr.  Ashley,  of  Ohio,  and  Mr.  Wilson,  of  Iowa,  presented 
resolutions  to  that  effect,  both  of  which  were  referred  to  the  committee  on 
judiciary,  of  which  Mr.  Wilson  was  chairman.  In  the  Senate,  Mr.  Hen 
derson,  of  Indiana,  on  the  llth  of  January,  and  Mr.  Sumner,  of  Massa 
chusetts,  on  the  8th  of  February,  1864,  introduced  similar  resolutions,  which 
were  referred  to  the  judiciary  committee.  February  10,  Mr.  Trumbull, 
chairman  of  that  committee,  reported  adversely  on  Mr.  Sumner's  resolution, 
and  on  Mr.  Henderson's,  but  reported  a  resolution,  — 

"  That  the  following  article  be  proposed  to  the  legislatures  of  the  several 
States,  as  an  amendment  of  the  Constitution  of  the  United  States,  which, 
when  ratified  by  three  fourths  of  said  legislatures,  shall  be  valid,  to  all  in 
tents  and  purposes,  as  a  part  of  the  said  Constitution  —  namely, 

"'Art.  XIII.  Sect.  1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have  been  duly  con 
victed,  shall  exist  within  the  United  States,  or  any  place  subject  to  their 
jurisdiction. 

"  '  Sect.  2.  Congress  shall  have  power  to  enforce  this  article  by  appropri 
ate  legislation.' " 

In  this  form  the  resolution  passed  the  Senate  (38  to  6),  although  it  failed 
at  that  time  in  the  House ;  but  it  was  subsequently  (January  27,  1865) 
passed  in  the  House  by  the  requisite  two  thirds  vote,  and  was  approved 


NOTES    TO    THE    FORTY-THIRD    EDITION.  399 

February  1,  1865  (Resolution  No.  11,  Stat.  1865,  page  567),  and  has  been 
subsequently  ratified,  and  is  now  a  part  of  our  Constitution. 

The  "  Act  to  protect  all  persons  in  the  United  States  in  their  civil  rights, 
and  furnish  the  means  of  their  vindication  "  (approved  April  9,  1866),  de 
clared  that  all  persons  should  be  deemed  citizens  of  the  United  States 
who  were  bora  in  the  United  States,  and  not  subject  to  any  foreign  power 
(excluding  only  Indians  not  taxed),  including  persons  of  every  race  and 
color,  without  regard  to  any  previous  condition  of  slavery.  It  declared  that 
they  should  all  have  the  same  rights  of  persons  and  property,  and  be  liable 
only  to  the  same  penal  laws  as  white  citizens ;  and  it  made  any  violation  of 
these  rights  a  penal  offence.  It  provided  effective  machinery  for  the  ex 
ecution  of  the  law  in  all  parts  of  the  country.  This  law  was  of  vast  im 
portance  in  securing  justice  and  liberty  for  the  colored  race  in  the  Southern 
States.  With  this  act,  which  was  the  precursor  of  the  amendment  of  the 
Constitution  which  embodies  the  same  principles,  the  names  of  Mr.  Trum- 
bull,  of  Illinois,  and  of  Mr.  Bingham,  of  Ohio,  are  indissolubly  connected. 
This  act  was  followed  by  the  joint  resolution  of  16th  June,  1866,  proposing 
the  following  amendment  to  the  Constitution,  which  was  subsequently  rat 
ified,  and*duly  proclaimed  by  the  Secretary  of  State. 

4fe 

AMENDMENT   XIV. 

Sect.  1.  All  persons  born  or  naturalized  in  the  United  States,  and  sub 
ject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States  ; 
nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. 

Sect.  2.  Representatives  shall  be  apportioned  among  the  several  Mates 
according  to  their  respective  numbers,  counting  the  whole  number  of  per 
sons  in  each  State,  excluding  Indians  not  taxed.  But  when  the  right  to 
vote  at  any  election  for  the  choice  of  electors  for  President  and  Vice-Presi 
dent  of  the  United  States,  representatives  in  Congress,  the  executive  and 
iudicial  officers  of  a  State,  or  the  members  of  the  legislature  thereof,  is  de 
nied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one  years 
of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged,  except 
for  participation  in  rebellion  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years 
of  age  in  such  State. 

Sect.  3.  No  person  shall  be  a  senator,  or  representative  in  Congress, 
or  elector  of  President  or  Vice-President,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  State,  who,  having  previously  taken 
an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the  United  States,  or  as 
a  member  of  any  State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States,  shall  have  en 
gaged  in  insurrection  or  rebellion  against  the  same,  or  given  aid  or  comfort 
to  the  enemies  thereof.  But  Congress  may  by  a  vote  of  two  thirds  of  each 
House,  remove  such  disability. 

Sect.   4.     The  validity  of  the  public  debt  of  the  United  States,  author- 


400  NOTES    TO    THE    FORTY-THIRD    EDITION. 


ized  by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties 
for  services  in  suppressing  insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States,  nor  any  State,  shall  assume  or  pay  any  debt 
or  obligation,  incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave  ;  but  all  such 
debts,  obligations,  and  claims  shall  be  held  illegal  and  void. 

Sect.  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate  legis 
lation,  the  provisions  of  this  article. 

On  the  24th  of  January,  1867,  Congress  passed  an  act  (Stat.  1867,  Chap.  15) 
providing  that  the  elective  franchise  in  the  Territories  should  not  be,  there 
after,  denied  to  any  persons  on  account  of  color,  race,  or  previous  condition 
of  servitude. 

The  joint  resolution  of  Congress  of  February  27,  1869,  proposed  the 
Fifteenth  Amendment  of  the  Constitution.  The  ratification  thereof  was 
announced  by  the  State  Department  March  30,  1870,  and  by  a  proclama 
tion  of  the  President. 

AMENDMENT  XV. 

Sect.  1.  The  right  of  the  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States,  or  by  any  State,  on  account  of 
race,  color,  or  previous  condition  of  servitude. 

Sect.  2.  Congress  shall  have  power  to  enforce  this  article  by  appro 
priate  legislation. 

This  amendment  has  been  followed  by  the  acts  of  May  31, 1870,  chap.  114, 
and  July  14,  1870,  chap.  254,  to  enforce  the  provisions  thereof,  securing 
the  right  guaranteed  by  the  amendment,  requiring  a  true  registry  of  legal 
voters  to  be  prepared  at  stated  times,  and  affixing  heavy  penalties  for  false 
voting,  false  registering,  or  false  counting,  or  for  wrongfully  refusing  to 
register  or  to  receive  a  vote,  or  for  bribery,  corruption,  or  intimidation. 

ACTS  OF  THE  EXECUTIVE  RELATING  TO  SLAVERY. 

The  most  important  acts  of  President  Lincoln  in  relation  to  slavery  plainly 
indicate  the  rapid  advancement  made  by  him  towards  the  conclusion  that 
slavery  must  be  destroyed  in  order  that  the  republic  might  be  preserved. 
The  steps  which  marked  his  progress  may  be  traced  in  the  following  proc 
lamations  :  — 

BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA. 
A  PROCLAMATION. 

Whereas  there  appears  in  the  public  prints  what  purports  to  be  a  proc 
lamation  of  Major  General  Hunter,  in  the  words  and  figures  following,  to 
wit :  — 

"  Headquarters  Department  of  the  South, 
"Hilton  Head,  S.  C.,  May  9,  1862. 

"  General  Orders  No.  11.  — The  three  States  of  Georgia,'  Florida,  and 
South  Carolina,  comprising  the  military  department  of  the  South,  having 
deliberately  declared  themselves  no  longer  under  the  protection  of  the 
United  States  of  America,  and  having  taken  up  arms  against  the  said 
United  States,  it  becomes  a  military  necessity  to  declare  them  under  mar- 


NOTES    TO    THE    FORTY-THIRD    EDITION.  401 

tial  law.  This  was  accordingly  done  on  the  25th  day  of  April,  1862.  Slavery 
and  martial  law  in  a  free  country  are  altogether  incompatible  ;  the  persons 
in  these  three  States  —  Georgia,  Florida,  and  South  Carolina  —  heretofore 
held  as  slaves,  are  therefore  declared  forever  free. 

"(Official)  DAVID  HUNTER, 

"  Major  General  Commanding. 
"ED.  W.  SMITH,  Acting  Assistant  Adjutant  Gen'l." 

And  whereas  the  same  is  producing  some  excitement  and  misunder 
standing,  therefore, 

I,  ABRAHAM  LINCOLN,  President  of  the  United  States,  proclaim  and 
declare,  that  the  Government  of  the  United  States  had  no  knowledge,  infor 
mation,  or  belief,  of  an  intention  on  the  part  of  General  Hunter  to  issue 
such  a  proclamation ;  nor  has  it  yet  any  authentic  information  that  the  doc 
ument  is  genuine.  And  further,  that  neither  General  Hunter,  nor  any  other 
commander,  or  person,  has  been  authorized  by  the  Government  of  the 
United  States  to  make  proclamations  declaring  the  slaves  of  any  State  free ; 
and  that  the  supposed  proclamation  now  in  question,  whether  genuine  or 
false,  is  altogether  void,  so  far  as  respects  such  declaration. 

I  further  make  known  that  whether  it  be  competent  for  me,  as  Com- 
mander-in-Chief  of  the  Army  and  Navy,  to  declare  the  slaves  of  any  State 
or  States  free,  and  whether  at  any  time,  in  any  case,  it  shall  have  become  a 
necessity  indispensable  to  the  maintenance  of  the  Government,  to  exercise 
such  supposed  power,  are  questions  which,  under  my  responsibility,  I  re 
serve  to  myself,  and  which  I  cannot  feel  justified  in.  leaving  to  the  decision 
of  comman'ders  in  the  field.  These  are  totally  different  questions  from  those 
of  police  regulations  in  armies  and  camps. 

On  the  sixth  day  of  March  last,  by  a  special  message,  I  recommended  to 
Congress  the  adoption  of  a  joint  resolution  to  be  substantially  as  follows  :  — 

'I  Piesolved,  That  the  United  States  ought  to  cooperate  with  any  State 
which  may  adopt  a  gradual  abolishment  of  slavery,  giving  to  such  State 
pecuniary  aid,  to  be  used  by  such  State  in  its  discretion,  to  compensate  for 
the  inconveniences,  public  and  private,  produced  by  such  change  of  system." 

The  resolution,  in  the  language  above  quoted,  was  adopted  by  large 
majorities  in  both  branches  of  Congress,  and  now  stands  an  authentic,  def 
inite,  and  solemn  proposal  of  the  nation  to  the  States  and  people  most  im 
mediately  interested  in  the  subject-matter.  To  the  people  of  those  States  I 
now  earnestly  appeal  —  I  do  not  argue  —  I  beseech  you  to  make  the  argu 
ment  for  yourselves  —  You  cannot,  if  you  would,  be  blind  to  the  signs  of 
the  times  —  I  beg  of  you  a  calm  and  enlarged  consideration  of  them,  ran 
ging,  if  it  may  be,  far  above  personal  and  partisan  politics.  This  proposal 
makes  common  cause  for  a  common  object,  casting  no  reproaches  upon  any. 
It  acts  not  the  Pharisee.  The  change  it  contemplates  would  come  gently 
as  the  dews  of  heaven,  not  rending  or  wrecking  anything.  Will  you  not  eni- 
brace  it  ?  So  much  good  has  not  been  done,  by  one  effort,  in  all  past  time, 
as,  in  the  providence  of  God,  it  is  now  your  high  privilege  to  do.  May  the 
vast  future  not  have  to  lament  that  you  have  neglected  it. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused  the  seal 
of  the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington,  this  nineteenth  day  of  May,  in 
[SEAL.]         the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty-two, 
and  of  the  Independence  of  the  United  States  the  eighty-sixth. 

ABRAHAM   LINCOLN. 
By  the  President : 

WILLIAM  H.  SEWARD,  Secretary  of  State. 

51 


402  NOTES    TO    THE    FORTY-THIRD    EDITION. 


BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA. 
A   PROCLAMATION. 

I,  ABRAHAM  LINCOLN,  President  of  the  United  States  of  America,  and 
Commander-in-Chief  of  the  Army  and  Navy  thereof,  do  hereby  proclaim  and 
declare  that  hereafter,. as  heretofore,  the  war  will  be  prosecuted  for  the  ob 
ject  of  practically  restoring  the  constitutional  relation  between  the  United 
States  and  each  of  the  States  and  the  people  thereof,  in  which  States  that 
relation  is  or  may  be  suspended  or  disturbed. 

That  it  is  my  purpose,  upon  the  next  meeting  of  Congress,  to  again  rec 
ommend  the  adoption  of  a  practical  measure  tendering  pecuniary  aid  to  the 
free  acceptance  or  rejection  of  all  slave  States,  so  called,  the  people  whereof 
may  not  then  be  in  rebellion  against  the  United  States,  and  which  States 
may  then  have  voluntarily  adopted,  or  thereafter  may  voluntarily  adopt,  im 
mediate  or  gradual  abolishment  of  slavery  within  their  respective  limits; 
and  that  the  effort  to  colonize  persons  of  African  descent  with  their  consent 
upon  this  continent  or  elsewhere,  with  the  previously  obtained  consent  of 
the  governments  existing  there,  will  be  continued. 

That  on  the  first  day  of  January,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  sixty-three,  all  persons  held  as  slaves  within  any  State  or 
designated  part  of  a  State,  the  people  whereof  shall  then  be  in  rebellion 
against  the  United  States,  shall  be  then,  thenceforward,  and  forever  free ; 
and  the  Executive  Government  of  the  United  States,  including  the  military 
and  naval  authority  thereof,  will  recognize  arid  maintain  the  freedom  of  such 
persons,  and  will  do  no  act  or  acts  to  repress  such  persons,  or  any  of  them, 
in  any  efforts  they  may  make  for  their  actual  freedom. 

That  the  Executive  will,  on  the  first  day  of  January  aforesaid,  by  procla 
mation,  designate  the  States  and  parts  of  States,  if  any,  in  which  the  people 
thereof,  respectively,  shall  their  be  in  rebellion  against  the  United  States ; 
and  the  fact  that  any  State,  or  the  people  thereof,  shall  on  that  day  be,  in 
good  faith,  represented  in  the  Congress  of  the  United  States  by  members 
chosen  thereto  at  elections  wherein  a  majority  of  the  qualified  voters  of  such 
State  shall  have  participated,  shall,  in  the  absence  of  strong  countervailing 
testimony,  be  deemed  conclusive  evidence  that  such  State,  and  the  people 
thereof,  are  not  then  in  rebellion  against  the  United  States. 

That  attention  is  hereby  called  to  an  act  of  Congress  entitled  "An  Act  to 
make  an  additional  article  of  war,"  approved  March  13,  1862,  and  which  act 
is  in  the  words  and  figures  following : 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  hereafter  the  following  shall 
be  promulgated  as  an  additional  article  of  war,  for  the  government  of  the 
army  of  the  United  States,  and  shall  be  obeyed  and  observed  as  such : 

"  ARTICLE  — .  All  officers  or  persons  in  the  military  or  naval  service  of  the 
United  States  are  prohibited  from  employing  any  of  the  forces  under  their 
respective  commands  for  the  purpose  of  returning  fugitives  from  service  or 
labor  who  may  have  escaped  from  any  persons  to  whom  such  service  or 
labor  is  claimed  to  be  due,  and  any  officer  who  shall  be  found  guilty  by  a 
court  martial  of  violating  this  article  shall  be  dismissed  from  the  service. 

"  SEC.  2.  And  be  it  further  enacted,  -That  this  act  shall  take  effect  from 
and  after  its  passage." 

Also  to  the  ninth  and  tenth  sections  of  an  act  entitled  "  An  Act  to  sup 
press  insurrection,  to  punish  treason  and  rebellion,  to  seize  and  confiscate 
property  of  rebels,  and  for  other  purposes,"  approved  July  17,  1862,  and 
which  sections  are  in  the  words  and  figures  following : 


NOTES    TO    THE    FORTY-THIRD    EDITION.  403 

"  SEC.  9.  And  be  it  further  enacted,  That  all  slaves  of  persons  who  shall 
hereafter  be  engaged  in  rebellion  against  the  Government  of  the  United 
States,  or  who  shall  in  any  way  give  aid  or  comfort  thereto,  escaping  from 
such  persons,  and  taking  refuge  within  the  lines  of  the  army ;  and  all  slaves 
captured  from  such  persons  or  deserted  by  them,  and  coming  under  the  con 
trol  of  the  Government  of  the  United  States  ;  and  all  slaves  of  such  persons 
found  on  [or]  being  within  any  place  occupied  by  rebel  forces,  and  after 
wards  occupied  by  the  forces  of  the  United  States,  shall  be  deemed  captives  of 
war,  and  shall  be  forever  free  of  their  servitude,  and  not  again  held  as  slaves. 

"  SEC.  10.  And  be  it  further  enacted,  That  no  slave  escaping  into  any 
State,  Territory,  or  the  District  of  Columbia,  from  any  other  State,  shall  be 
delivered  up,  or  in  any  way  impeded  or  hindered  of  his  liberty,  except  for 
crime,  or  some  offence  against  the  laws,  unless  the  person  claiming  said 
fugitive  shall  first  make  oath  that  the  person  to  whom  the  labor  or  service 
of  such  fugitive  is  alleged  to  be  due  is  his  lawful  owner,  and  has  not  borne 
arms  against  the  United  States  in  the  present  rebellion,  nor  in  any  way- 
given  aid  and  comfort  thereto  ;  and  no  person  engaged  in  the  military  or 
naval  service  of  the  United  States  shall,  under  any  pretence  whatever,"  as 
sume  to  decide  on  the  validity  of  the  claim  of  any  person  to  the  service  or 
labor  of  any  other  person,  or  surrender  up  any  such  person  to  the  claimant, 
on  pain  of  being  dismissed  from  the  service." 

And  I  do  hereby  enjoin  upon  and  order  all  persons  engaged  in  the  mili 
tary  and  naval  service  of  the  United  States  to  observe,  obey,  and  enforce, 
within  their  respective  spheres  of  service,  the  act  and  sections  above  recited. 

And  the  Executive  will  in  due  time  recommend  that  all  citizens  of  the 
United  States  who  shall  have  remained  loyal  thereto  throughout  the  rebel 
lion  shall  (upon  the  restoration  of  the  constitutional  relation  between  the 
United  States  and  their  respective  States  and  people,  if  that  relation  shall 
have  been  suspended  or  disturbed)  be  compensated  for  all  losses  by  acts  of 
the  United  States,  including  the  loss  of  slaves. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused  the  seal  of 
the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  twenty-second  day  of  Septem- 

I~L  s  1  b.er'  in  the  year  of  our  L°rd  one  tnousan<l  eight  hundred  and 
sixty-two,  and  of  the  Independence  of  the  United  States  the 
eighty-seventh. 

ABRAHAM  LINCOLN. 
By  the  President : 

WILLIAM  II.  SEWARD,  Secretary  of  State. 

BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA. 
A  PROCLAMATION. 

WHEREAS,  on  the  twenty-second  day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  sixty-two,  a  proclamation  was  issued 
by  the  President  of  the  United  States,  containing,  among  other  things,  the 
following,  to  wit : 

"  That  on  the  first  day  of  January,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  sixty-three,  all  persons  held  as  slaves  within  any  State 
or  designated  part  of  a  State,  the  people  whereof  shall  then  be  in  rebellion 
against  the  United  States,  shall  be  then,  thenceforward,  and  forever,  free  : 
and  the  Executive  Government  of  the  United  States,  including  the  military 
and  naval  authority  thereof,  will  recognize  and  maintain  the  freedom  of  such 
persons,  and  will  do  no  act  or  acts  to'repress  such  persons,  or  any  of  them, 
in  any  efforts  they  may  make  for  their  actual  freedom. 


404  NOTES    TO    THE    FORTY-THIRD    EDITION. 

"  That  the  Executive  will,  on  the  first  day  of  January  aforesaid,  by  procla 
mation,  designate  the  States  and  parts  of  States,  if  any,  in  which  the  people 
thereof,  respectively,  shall  then  be  in  rebellion  against  the  United  States ; 
and  the  fact  that  any  State,  or  the  people  thereof,  shall  on  that  day  be  in 
good  faith  represented  in  the  Congress  of  the  United  States,  by  members 
chosen  thereto  at  elections  wherein  a  majority  of  the  qualified  voters  of  such 
States  shall  have  participated,  shall,  in  the  absence  of  strong  countervailing 
testimony,  be  deemed  conclusive  evidence  that  such  State,  and  the  people 
thereof,  are  not  then  in  rebellion  against  the  United  States." 

Now,  therefore,  I,  ABRAHAM  LINCOLN,  President  of  the  United  States, 
by  virtue  of  the  power  in  me  vested  as  Commander-in- Chief  of  the  Army  and 
Navy  of  the  United  States,  in  time  of  actual  armed  rebellion  against  the 
authority  and  Government  of  the  United  States,  and  as  a  fit  and  necessary 
war  measure  for  suppressing  said  rebellion,  do,  on  this  first  day  of  January, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty-three,  and  in 
accordance  with  my  purpose  so  to  do,  publicly  proclaimed  for  the  full  period 
of  one  hundred  days  from  the  day  first  above  mentioned,  order  and  desig 
nate  as  the  States  and  parts  of  States  wherein  the  people  thereof,  respective 
ly,  are  this  day  in  rebellion  against  the  United  States,  the  following,  to  wit  : 

Arkansas,  Texas,  Louisiana  (except  the  parishes  of  St.  Bernard,  Plaque- 
mines,  Jefferson,  St.  John,  St.  Charles,  St.  James,  Ascension,  Assumption, 
Terre  Bonne,  Lafourche,  St.  Mary,  St.  Martin,  and  Orleans,  including  the 
city  of  New  Orleans),  Mississippi',  Alabama,  Florida,  Georgia,  South  Caro 
lina,  North  Carolina,  and  Virginia  (except  the  forty-eight  counties  desig- 


present  left  precisely  as  if  this  proclamation  were  not  issued. 

And  by  virtue  of  the  power,  and  for  the  purpose  aforesaid,  I  do  order  and 
declare  that  all  persons  held  as  slaves  within  said  designated  States  and  parts 
of  States  are,  and  henceforward  shall  be,  free ;  and  that  the  Executive  Gov 
ernment  of  the  United  States,  including  the  military  and  naval  authorities 
thereof,  will  recognize  and  maintain  the  freedom  of  said  persons. 

And  I  hereby  enjoin  upon  the  people  so  declared  to  be  free  to  abstain 
from  all  violence,  unless  in  necessary  self-defence  ;  and  I  recommend  to  them 
that,  in  all  cases  when  allowed,  they  labor  faithfully  for  reasonable  wages. 

And  I  further  declare  and  make  known  that  such  persons,  of  suitable  con 
dition,  will  be  received  into  the  armed  service  of  the  United  States  to  gar 
rison  forts,  positions,  stations,  and  other  places,  and  to  man  vessels  of  all 
sorts  in  said  servicel 

And  upon  this  act,  sincerely  believed  to  be  an  act  of  justice,  warranted 
by  the  Constitution  upon  military  necessity,  I  invoke  the  considerate  judg 
ment  of  mankind,  and  the  gracious  favor  of  Almighty  God. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused  the  seal  of 
the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  first  day  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  sixty-three, 
LL-  s'-l  and  of  the  Independence  of  the  United  States  of  America  the 

eighty-seventh. 

ABRAHAM   LINCOLN. 

By  the  President : 

WILLIAM  H.  SEWARD,  Secretary  of  State. 

NOTE.  —  For  extracts  from  President  Lincoln's  Message  of  December  8,  1863,  see 
pp.  250-253. 


NOTES    TO    THE    FORTY-THIRD    EDITION.  405 

[No.  3.     See  p.  26.] 
SLAVES  IN  THE  ARMY. 

Compensation  to  Masters  of  Slaves  employed  in  the  Military  Service  of  the 

United  States. 

The  policy  adopted  by  the  government  in  relation  to  the  use  of  slaves  in 
the  army  is  fully  explained  in  a  subsequent  note  upon  the  organization  of 
persons  of  African  descent  as  part  of  our  military  and  naval  forces. 

The  principles  asserted  in  the  text  in  relation  to  the  right  of  our  govern 
ment  to  use  slaves  of  loyal  and  of  disloyal  masters  have  been  recognized  and 
confirmed  by  several  acts  of  Congress.  The  right  of  the  masters  to  com 
pensation  has  also  been  the  subject  of  legislative  discussion. 

As  the  acts  of  April  16,  1862  (Chap.  54),  and  July  12,  1862,  (Chap.  155),  by 
which  slavery  in  the  District  of  Columbia  was  abolished,  and  by  which  com 
pensation  to  slave  masters  was  provided  for,  were  not  founded  on  the  war 
powers  of  the  government,  they  need  not  be  especially  noticed  in  this  con 
nection. 

On  the  22d  of  September,  1862,  President  Lincoln  issued  a  proclamation 
in  which  he  announced  that  it  was  his  purpose  to  treat  as  free  all  slaves  held 
in  any  State  which  should  be  declared  in  rebellion  on  the  first  day  of  the 
following  January ;  and  to  propose,  upon  the  next  meeting  of  Congress,  to 
grant  pecuniary  aid  to  all  such  slave  States  not  then  in  rebellion,  as  would 
adopt  measures  for  the  gradual  or  immediate  emancipation  of  slaves ;  and 
to  recommend  to  Congress  that  all  citizens  of  the  United  States  who  should 
be  found  to  have  remained  loyal  thereto  throughout  the  rebellion  (on  res 
toration  of  peace)  be  compensated  for  all  losses  by  acts  of  the  United 
States,  including  the  loss  of  slaves. 

Claims  to  slaves  employed  for  insurrectionary  purposes,  and  claims  of 
rebels  to  slaves  however  employed,  were  disallowed  by  acts  of  August  6, 
1861  (Chap.  60),  and  April  16,  1862  (Chap.  54).  By  act  of  February  24, 
1864  (Chap.  13),  it  is  provided  (Sec.  24)  that,  "  When  a  slave  of  a  loyal  master 
shall  be  drafted  and  mustered  into  the  service  of  the  United  States,  his 
master  shall  have  a  certificate  thereof,  and  thereupon  such  slave  shall  be 
free,  and  the  bounty  of  one  hundred  dollars,  now  payable  by  law  for  each 
drafted  man,  shall  be  paid  to  the  person  to  whom  such  drafted  man  was 
owing  service  or  labor  at  the  time  of  his  muster  into  the  service  of  the  United 
States."  The  same  bounty  was  also  made  payable  to  persons  who  had 
theretofore  enlisted  or  volunteered  in  the  service.  The  Secretary  of  Wai- 
was  requested  to  appoint  a  commission  in  each  of  the  Slave  States  rep 
resented  in  Congress,  charged  to  award  to  each  loyal  person  to  whom 
a  colored  volunteer  may  owe  service  a  just  compensation,  not  exceeding 
three  hundred  dollars,  for  each  such  volunteer,  payable  out  of  the  tund 
derived  from  commutations;  and  every  such  colored  volunteer,  on  being 


400  NOTES    TO    THE    FORTY-THIRD    EDITION. 

mustered  into  service,  was  to  be  free.  The  provisions  of  this  act  were  made 
retrospective,  so  as  to  cover  bounties  and  compensation  to  masters  for  prior 
enlistments  of  slaves. 

Under  this  act  commissioners  were  appointed  by  the  Secretary  of  War, 
and  rules  were  drawn  up,  and  forms  of  deeds  of  manumission  were  prepared 
at  the  request  of  the  Secretary  of  War,  by  the  Solicitor  of  the  War  Depart 
ment  ;  and  such  commissioners  awarded  bounties  and  compensation  to 
numerous  slave  masters  residing  in  the  loyal  slave  States,  all  of  whom  were 
required  to  execute  such  deeds  of  manumission  before  receiving  their  money. 
On  the  10th  of  February,  1864,  Mr.  Trumbull,  Senator  from  Illinois,  Chair 
man  of  the  Committee  on  the  Judiciary,  reported  a  resolution  that  an  arti 
cle  abolishing  slavery  be  proposed  to  the  legislatures  of  the  several  States, 
as  an  amendment  to  the  Constitution.  This  resolution  was  taken  upNby 
the  Senate  as  in  committee  of  the  whole,  on  the  28th  of  March,  and  it  was 
debated  from  time  to  time  until  the  8th  of  April,  when  it  was  finally  passed, 
by  vote  of  38  to  6.  On  the  31st  of  May  it  was  taken  up  in  the  House,  and, 
after  long  discussion,  was  subsequently  passed  and  approved,  February  1, 
1865.  During  the  pendency  of  these  discussions  it  is  probable  that  there 
was  no  undue  zeal  or  activity  on  the  part  of  the  commissioners  to  award 
bounties  and  compensations  to  slave  masters.  After  the  amendment  was 
ratified,  no  further  allowances  were  made ;  and  neither  the  amendment  of 
the  Constitution  nor  the  laws  of  Congress  have  provided  for  any  further  in 
demnity  to  loyal  or  disloyal  citizens  for  the  loss  of  their  slaves. 

The  Fourteenth  Amendment  of  the  Constitution,  recommended  by  Con 
gress  in  1866,  and  finally  ratified  by  the  States  in  186S,  provides  that, 
"  Neither  the  United  States  nor  any  State  shall  assume  or  pay  any  debt  or 
obligation,  incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  the  emancipation  of  any  slave ;  but  all 
such  debts,  obligations,  and  claims  shall  be  held  illegal  and  void." 


[No.  4.    See  pp.  54  and  116.] 
CONFISCATION. 

The  views  of  President  Lincoln  upon  the  Confiscation  Act  of  July  17, 
1862,  were  fully  expressed  by  him  in  the  following  Message  to  Congress, 
dated  on  the  same  day  on  which  he  approved  that  act. 

MESSAGE. 

Fellow-citizens  of  the  Senate  and  House  of  Representatives : 

Considering  the  bill  for  an  act  to  suppress  insurrection,  to  punish  trea 
son  and  rebellion,  to  seize  and  confiscate  the  property  of  rebels,  and  for 
other  purposes,  and  the  joint  resolution  explanatory  of  said  act,  as  being 
substantially  one,  I  have  approved  and  signed  both. 

Before  I  was  informed  of  the  passage  of  the  resolution,  I  had  prepared 


NOTES    TO    THE    FORTY-THIRD    EDITION.  407 

the  draft  of  a  message  stating  objections  to  the  bill  becoming  a  law,  a  copy 
of  which  draft  is  herewith  transmitted. 

ABRAHAM  LINCOLN. 
July  17,  1862. 

Fellow-citizens  of  the  House  of  Representatives  : 

I  herewith  return  to  your  honorable  body,  in  which  it  originated,  the 
bill  for  an  act  entitled  an  act  to  suppress  treason  and  rebellion,  to  seize 
and  confiscate  the  property  of  rebels,  and  for  other  purposes,  together  with 
my  objections  to  its  becoming  a  law. 

There  is  much  in  the  bill  to  which  I  perceive  no  objection.  It  is  wholly 
prospective,  and  it  touches  neither  the  person  nor  property  of  any  loyal 
citizen  —  in  which  particular  it  is  just  and  proper. 

The  first  and  second  sections  provide  for  the  conviction  and  punishment 
of  persons  who  shall  be  guilty  of  treason,  and  the  persons  who  shall  incite, 
set  on  foot,  assist  or  engage  in  any  rebellion  or  insurrection  against  the  au 
thority  of  the  United  States,  or  the  laws  thereof,  or  shall  give  aid  or  com 
fort  to  any  such  existing  rebellion  or  insurrection. 

By  fair  construction  the  persons  within  these  sections  are  not  to  be  pun 
ished  without  regular  trials  in  duly  constituted  courts,  under  the  forms  and 
all  the  substantial  provisions  of  law,  and  of  the  Constitution  applicable  to 
their  several  cases.  To  this  I  perceive  no  objection,  especially  as  such  per 
sons  would  be  within  the  general  pardoning  power,  and  also  within  the 
special  provision  for  pardon  and  amnesty  contained  in  this  act.  It  also 
provides  that  the  slaves  of  persons  confiscated  under  these  sections  shall 
be  free.  I  think  there  is  an  unfortunate  form  of  expression  rather  than  a 
substantial  objection  in  this.  It  is  startling  to  say  that  Congress  can  free 
a  slave  within  a  State ;  and  yet,  were  it  said  that  the  ownership  of  a  slave 
had  first  been  transferred  to  the  nation,  and  that  Congress  had  then  liber 
ated  him^  the  difficulty  would  vanish  ;  and  this  is  the  real  case.  The  traitor 
against  the  general  government  forfeits  his  slave  at  least  as  justly  as  he 
does  any  other  property,  and  he  forfeits  both  to  the  government  against 
which  he  offends.  The  government,  so  far  as  there  can  be  ownership,  owns 
the  forfeited  slaves,  and  the  question  for  Congress  in  regard  to  them  is, 
Shall  they  be  made  free,  or  sold  to  new  masters  ?  I  see  no  objection  to 
Congress  deciding  in  advance  that  they  shall  be  free.  To  the  high  honor  of 
Kentucky,  as  I  am  informed,  she  has  been  the  owner  of  some  slaves  by 
escheat,  and  has  sold  none,  but  liberated  all.  I  hope  the  same  is  true  of 
some  other  States.  Indeed,  I  do  not  believe  it  would  be  physically  possi 
ble  for  the  general  government  to  return  persons  so  circumstanced  to  actual 
slavery.  I  believe  there  would  be  physical  resistance  to  it,  which  would 
never  be  turned  aside  by  argument,  nor  driven  away  by  force.  In  this  view 
of  it,  I  have  no  objection  to  this  feature  of  the  bill. 

Another  matter  involved  in  these  two  sections  and  running  through  other 
parts  of  the  act,  will  be  noticed  hereafter. 

I  perceive  no  objection  to  the  third  and  fourth  sections.  So  far  as  I  wish 
to  notice  the  fifth  and  sixth  sections,  they  may  be  considered  together. 
That  the  enforcement  of  these  sections  would  do  no  injustice  to  the  persons 
embraced  within  them  is  clear.  That  those  who  make  a  causeless  war  should 
be  compelled  to  pay  the  cost  of  it,  is  too  obviously  just  to  be  called  in  ques 
tion.  To  give  government  protection  to  the  property  of  persons  who  have 
abandoned  it  and  gone  on  a  crusade  to  overthrow  that  same  government  is 
absurd,  if  considered  in  the  mere  light  of  justice.  The  severest  justice  may 
not  always  be  the  best  policy.  The  principle  of  seizing  and  appropriating 
the  property  of  the  persons  embraced  within  these  sections  is  certainly  not 


408  NOTES    TO    THE    FORTY-THIRD    EDITION. 


very  objectionable,  but  a  justly  indiscriminating  application  of  it  would  be 
very  difficult,  and  to  a  great  extent  impossible  ;  and  would  it  not  be  wise  to 
place  a  power  of  remission  somewhere,  so  that  these  persons  may  know  that 
they  have  something  to  save  by  desisting? 

I  am  not  sure  whether  such  power  of  remission  is  or  is  not  within  section 
thirteen  without  a  special  act  of  Congress.  I  think  our  military  command 
ers,  when,  in  military  phrase,  they  are  within  the  enemy's  country,  should  in 
an  orderly  manner  seize  and  keep  whatever  of  real  or  personal  property  may 
be  necessary  or  convenient  for  their  commands,  and  at  the  same  time  pre 
serve  in  some  way  the  evidence  of  what  they  do. 

What  I  have  said  in  regard  to  slaves  while  commenting  on  the  first  and 
second  sections,  is  applicable  to  the  ninth,  with  the  difference  that  no  pro 
vision  is  made  in  the  whole  act  for  determining  whether  a  particular  indi 
vidual  slave  does  or  does  not  fall  within  the  class  defined  within  that  section. 
He  is  to  be  free  upon  certain  conditions  ;  but  whether  these  conditions  do  or 
do  not  pertain  to  him,  no  mode  of  ascertaining  is  provided.  This  could 
be  easily  supplied. 

To  the  tenth  section  I  make  no  objection.  The  oath  therein  required 
seems  to  be  proper,  and  the  remainder  of  the  section  is  substantially  iden 
tical  with  a  law  already  existing. 

The  eleventh  section  simply  assumes  to  confer  discretionary  powers  upon 
the  Executive  without  the  law.  I  have  no  hesitation  to  go  as  far  in  the 
direction  indicated  as  I  may  at  any  time  deem  expedient,  and  I  am  ready  to 
to  say  now  I  think  it  is  proper  for  our  military  commanders  to  employ  as 
laborers  as  many  persons  of  African  descent  as  can  be  used  to  advantage. 

The  twelfth  and  thirteenth  sections  are  something  better ;  they  are  un 
objectionable,  and  the  fourteenth  is  entirely  proper  if  all  other  parts  of  the 
act  shall  stand. 

That  to  which  I  chiefly  object  pervades  most  parts  of  the  act,  but  more 
distinctly  appears  in  the  first,  second,  seventh,  and  eighth  sections.  It  is 
the  sum  of  those  provisions  which  results  in  the  divesting  of  title  forever. 
For  the  causes  of  treason  —  the  ingredients  of  treason,  but  amounting  to  the 
full  crime  —  it  declares  forfeiture  extending  beyond  the  lives  of  the  guilty 
parties,  whereas  the  Constitution  of  the  United  States  declares  that  no  at 
tainder  of  treason  shall  work  corruption  of  blood  or  forfeiture,  except 
during  the  life  of  the  person  attainted.  True,  there  is  to  be  no  formal 
attainder  in  this  case  ;  still  I  think  the  greater  punishment  cannot  be  consti 
tutionally  inflicted  in  a  different  form  for  the  same  offence.  With  great 
respect,  I  am  constrained  to  say  I  think  this  feature  of  the  act  is  unconsti 
tutional.  It  wrould  not  be  difficult  to  modify  it. 

I  may  remark  that  the  provision  of  the  Constitution,  put  in  language  bor 
rowed  from  Great  Britain,  applies  only  in  this  country,  as  I  understand,  to 
real  estate. 

Again,  this  act,  by  proceedings  in  rem,  forfeits  property  for  the  ingredi 
ents  of  treason  without  a  conviction  of  the  supposed  criminal,  or  a  personal 
hearing  given  him  in  any  proceeding.  That  we  may  not  touch  property 
lying  within  our  reach  because  we  cannot  give  personal  notice  to  an  owner 
who  is  absent  endeavoring  to  destroy  the  government,  is  certainly  not  very 
satisfactory.  Still  the  owner  may  not  be  thus  engaged,  and  I  think  a  reason 
able  time  should  be  provided  for  such  parties  to  appear  and  have  personal 
hearings.  Similar  provisions  are  not  uncommon  in  connection  with  pro 
ceedings  in  rem. 

For  the  reasons  stated  I  return  the  bill  to  the  House,  in  which  it  origi 
nated. 


NOTES    TO    THE    FORTY-THIRD    EDITION.  409 

President  Lincoln,  at  this  time,  held  the  opinion  that  Congress  had  no 
power  "  to  free  a  slave  within  a  State,"  although  he  was  satisfied  that  if 
slaves  of  rebels  should  by  capture  become  the  property  of  the  government, 
it  might  and  ought  to  restore  such  captives  to  freedom.  He  had  also  fallen 
into  the  error  of  supposing  that  Congress  had  no  power  to  pass  a  law  for 
confiscating  the  real  estate  of  rebels  in  fee  simple.  After  a  subsequent  and 
through  examination  of  the  subject,  his  opinion  was  changed ;  and  with  that 
frankness  and  sincerity  for  which  he  was  so  remarkable,  he  communicated 
to  others  the  views  he  then  entertained,  and  authorized  the  Hon.  George  W. 
Julian,  a  member  of  Congress  from  Indiana,  one  of  his  highly  esteemed 
friends,  to  announce  in  public  that  he  was  ready  to  give  his  official  support 
and  sanction  to  a  repeal  of  the  declaratory  resolution,  which,  as  he  under 
stood  it,  limited  forfeitures  for  treason  to  life  estates  of  traitors.  In  1863-4 
both  Houses  of  Congress  passed  a  bill  which  contained  a  clause  repealing 
that  resolution  ;  but  the  project  of  reconstrucion  which  it  embodied  was  not, 
in  some  respects,  satisfactory  to  the  President,  and  it  did  not  become  a  law. 

In  1864-5  bills  passed  each  branch  of  Congress  having  the  effect  of 
abrogating  this  qualifying  resolution,  but  neither  of  them  became  a  law : 
nevertheless,  these  facts  and  proceedings  show  that  the  House,  the  Senate, 
and  the  President,  after  mature  consideration,  gave  their  practical  sanction 
to  the  correctness  of  the  constitutional  doctrine  stated  in  the  text.  The 
error  of  the  President  was  of  the  gravest  character  ;  it  resulted  in  paralyzing, 
if  it  did  not  wholly  destroy,  one  of  the  most  effective  means  of  crushing  the 
spirit  of  rebellion ;  for  it  left  the  rebel  owners  of  large  estates,  at  the  end  of 
the  Avar,  in  full  possession  and  control  of  their  lands,  and  they  managed  to 
exclude  from  ownership  of  the  soil  the  great  body  of  freedmen  and  of  the 
poorer  classes  of  white  men  who  were  friendly  to  the  Union.  (See  p.  230-239.) 
If  these  colossal  plantations  had  been  confiscated  in  fee,  and  broken  up 
into  small  farms,  and  distributed  among  the  loyal  common  people,  the 
power  of  that  class  which  caused  the  war  would  have  terminated  with  the 
surrender  of  their  armies.  Estates  for  life,  in  a  time  of  war,  could  hardly 
find  purchasers,  and  were  of  so  uncertain  a  tenure,  that  confiscation,  so  far 
as  it  applied  to  real  estate,  was  as  useless  to  the  government  as  it  was 
harmless  to  the  enemy. 

CONFEDERATE  LAWS  OF  CONFISCATION. 

The  "  Confederate  States  "  passed  a  series  of  acts,  from  which  we  may 
learn  the  views  entertained  by  strict  constructionists  in  relation  to  the  war 
powers  of  their  own  government,  which  had  adopted  the  Constitution  of 
the  United  States  and  the  laws  thereof,  with  few,  if  any  alterations,  except 
ing  as  regards  slavery. 

On  the  8th  of  August,  1861,  the  Provisional  Congress  passed  "An  Act 
respecting  alien  enemies  "  (Chap.  19.  See  Stat.  at  Large  of  the  Provisional 
Congress,  page  174),  as  follows : 

52 


410  NOTES    TO   THE    FORTY-THIRD    EDITION. 

The  Congress  of  the  Confederate  States  of  America  do  enact,  That  when 
ever  there  shall  be  a  declared  war  between  the  Confederate  States  and  any 
foreign  nation  or  government,  or  any  invasion  or  predatory  incursion  shall  be 
perpetrated,  attempted  or  threatened  against  the  territory  of  the  Confederate 
States,  by  any  foreign  nation  or  government,  and  the  President  of  the  Con 
federate  States  shall  make  public  proclamation  of  the  event,  or  the  same 
shall  be  proclaimed  by  act  of  Congress,  all  natives,  citizens,  denizens,  or 
subjects  of  the  hostile  nation  or  government,  being  males  of  fourteen  years 
of  age  and  upwards,  who  shall  be  within  the  Confederate  States,  and  not 
citizens  thereof,  shall  be  liable  to  be  apprehended,  restrained  or  secured,  and 
removed  as  alien  enemies  :  Provided,  That  during  the  existing  war,  citizensC 
of  the  United  States,  residing  within  the  Confederate  States,  with  intent  to 
become  citizens  thereof,  and  who  shall  make  a  declaration  of  such  intention, 
in  due  form,  and  acknowledging  the  authority  of  the  government  of  the  same, 
shall  not  become  liable  as  aforesaid,  nor  shall  this  act  extend  to  citizens  of 
the  States  of  Delaware,  Maryland,  Kentucky,  Missouri,  and  of  the  District 
of  Columbia,  and  the  Territories  of  Arizona  and  New  Mexico,  and  the  Indian 
Territory  south  of  Kansas,  who  shall  not  be  chargeable  with  actual  hostility 
or  other  crime  against  the  public  safety,  and  who  shall  acknowledge  the 
authority  of  the  government  of  the  Confederate  States. 

SEC.  2.  The  President  of  the  Confederate  States  shall  be,  and  he  is  here 
by,  authorized,  by  his  proclamation,  or  other  public  act,  in  fase  of  existing 
or  declared  war,  as  aforesaid,  to  provide  for  the  removal  of  those  who,  not 
being  permitted  to  reside  within  the  Confederate  States,  shall  refuse  or  neg 
lect  to  depart  therefrom  ;  and  to  establish  such  regulations  in  the  premises 
as  the  public  safety  may  require. 

SEC.  3.  Immediately  after  the  passage  of  this  act,  the  President  of  the 
Confederate  States  shall,  by  proclamation,  require  all  citizens  of  the  United 
States,  being  males  of  fourteen  years  and  upwards,  within  the  Confederate 
States,  and  adhering  to  the  government  of  the  United  States,  and  acknowl 
edging  the  authority  of  the  same,  and  not  being  citizens  of  the  Confederate 
States,  nor  within  the  proviso  of  the  first  section  of  this  act,  to  depart  from 
the  Confederate  States  within  forty  days  from  the  date  of  said  proclama 
tion  ;  and  such  persons  remaining  within  the  Confederate  States  after  that 
time  shall  become  liable  to  be  treated  as  alien  enemies ;  and  in  all  cases  of 
declared  war  as  aforesaid,  aliens,  resident  within  the  Confederate  States, 
who  shall  oecome  liable  as  enemies  as  aforesaid,  and  who  shall  not  be  charge 
able  with  actual  hostility  or  other  crime  against  the  public  safety,  shall  be 
allowed  the  time  for  the  disposition  of  their  effects  and  for  departure,  which 
may  be  stipulated  by  any  treaty  with  such  hostile  nation  or  government; 
and  when  no  such  treaty  may  exist  the  President  shall  prescribe  such  time 
as  may  be  consistent  with  the  public  safety,  and  accord  with  the  dictates  of 
humanity  and  national  hospitality. 

SEC.  4.  After  any  declared  war,  or  proclamation,  as  aforesaid,  it  shall 
be  the  duty  of  the  several  courts  of  the  Confederate  States,  and  of  each 
State  having  criminal  jurisdiction,  and  of  the  several  judges  and  justices  of 
the  courts  of  the  Confederate  States,  and  they  are  hereby  authorized,  upon 
complaint  against  any  alien,  or  alien  enemies,  as  aforesaid,  or  persons  com 
ing  within  the  purview  of  this  act,  who  shall  be  resident,  or  remaining  in 
the  Confederate  States,  and  at  large  within  the  jurisdiction  or  district  of 
such  judge  or  court,  as  aforesaid,  contrary  to  the  intent  of  this  act,  and  of  the 
proclamation  of  the  President  of  the  Confederate  States,  or  the  regulations 
prescribed  by  him,  in  pursuance  of  this  act,  to  cause  such  alien  or  aliens, 
person  or  persons,  as  aforesaid,  to  be  duly  apprehended  and  convened  be 
fore  such  court,  judge  or  justice,  for  examination ;  and  after  a  full  examina- 


NOTES    TO    THE    FORTY-THIRD    EDITION.  411 


tion  and  hearing  in  such  complaint,  and  sufficient  cause  therefor  appearing, 
shall  or  may  order  such  alien  or  aliens,  person  or  persons,  to  be  removed 
out  of  the  territory  of  the  Confederate  States,  or  to  be  otherwise  dealt  with  or 
restrained,  conformably  to  the  intent  of  this  act,  and  the  proclamation  or  regu 
lations  which  may  be  prescribed  as  aforesaid,  and  may  imprison  or  otherwise 
secure  such  alien  person  until  the  order  which  shall  be  made  shall  be  performed. 

SEC.  5.  It  shall  be  the  duty  of  the  marshal  of  the  district,  in  which  any 
alien  enemy  or  person  offending  against  the  provisions  of  this  act,  shall  be 
apprehended,  who  by  the  President  of  the  Confederate  States,  or  by  order 
of  any  court,  judge  or  justice,  as  aforesaid,  shall  be  required  to  depart,  [or] 
to  be  removed  as  aforesaid,  to  execute  such  order  by  himself  or  deputy,  or 
other  discreet  person,  and  for  such  execution  the  marshal  shall  have  the 
warrant  of  the  President,  or  the  court  or  judge,  as  the  case  may  be. 

Approved  August  8,  1861. 

On  the  30th  of  August,  1861,  the  Confederates  passed  the  following 
"  Act  for  the  sequestration  of  the  estates,  property,  and  effects  of  alien 
enemies,  and  for  the  indemnity  of  citizens  of  the  Confederate  States,  and 
persons  aiding  the  same  in  the  existing  war  with  the  United  States." 

Whereas  the  Government  and  people  of  the  United  States  have  departed 
from  the  usages  of  civilized  warfare  in  confiscating  and  destroying  the  prop 
erty  of  the  people  of  the  Confederate  States  of  all  kinds,  whether  used 
for  military  purposes  or  not ;  and  whereas,  our  only  protection  against  such 
wrongs  is  to  be  found  in  such  measures  of  retaliation  as  will  ultimately 
indemnify  our  own  citizens  for  their  losses,  and  restrain  the  wanton  ex 
cesses  of  our  enemies  :  Therefore  — 

Be  it  enacted  by  the  Congress  of  the  Confederate  States  of  America,  That 
all  and  every  the  lands,  tenements  and  hereditaments,  goods  and  chattels, 
rights  and  credits  within  these  Confederate  States,  and  every  right  and  in 
terest  therein  held,  owned,  possessed  or  enjoyed  by  or  for  any  alien  enemy 
since  the  twenty-first  day  of  May,  one  thousand  eight  hundred  and  sixty- 
one,  except  such  debts  due  to  an  alien  enemy  as  may  have  been  paid  into 
the  Treasury  of  any  one' of  the  Confederate  States  prior  to  the  passage  of 
this  law,  be,  and  the  same  are  hereby,  sequestrated  by  the  Confederate  States 
of  America,  and  shall  be  held  for  the  full  indemnity  of  any  true  and  loyal 
citizen  or  resident  of  these  Confederate  States,  or  other  person  aiding  said 
Confederate  States  in  the  prosecution  of  the  present  war  between  said  Con 
federate  States  and  the  United  States  of  America,  and  for  which  he  may 
suffer  any  loss  or  injury  under  the  act  of  the  United  States,  to  which  this 
act  is  retaliatory,  or  under  any  other  act  of  the  United  States,  or  of  any  State 
thereof  authorizing  the  seizure,  condemnation,  or  confiscation  of  the  prop 
erty  of  citizens  or  residents  of  the  Confederate  States,  or  other  person  aid 
ing  said  Confederate  States,  and  the  same  shall  be  seized  and  disposed  of 
as  provided  for  in  this  act :  Provided,  however,  When  the  estate,  property 
or  rights  to  be  effected  by  this  act  were,  or  are,  within  some  State  of  this 
Confederacy,  which  has  become  such  since  said  twenty-first  day  of  May, 
then  this  act  shall  operate  upon  and  as  to  such  estate,  property  or  rights, 
and  all  persons  claiming  the  same  from  and  after  the  day  such  State  so  be 
came  a  member  of  this  Confederacy,  and  not  before :  Provided,  further, 
That  the  provisions  of  the  act  shall  not  extend  to  the  stocks  or  other  public 
securities  of  the  Confederate  Government,  or  of  any  of  the  States  of  this 
Confederacy  held  or  owned  by  any  alien  enemy,  or  to  any  debt,  obligation, 
or  sum  due  from  the  Confederate  Government,  or  any  of  the  States,  to  such 


412  NOTES    TO    THE   FORTY-THIRD    EDITION. 

alien  enemy :  And  provided,  also,  That  the  provisions  of  this  act  shall  not 
embrace  the  property  of  citizens  or  residents  of  either  of  the  States  of  Del 
aware.  Maryland,  Kentucky  or  Missouri,  or  of  the  District  of  Columbia,  or 
the  Territories  of  New  Mexico,  Arizona,  or  the  Indian  Territory  south  of 
Kansas,  except  such  of  said  citizens  or  residents  as  shall  commit  actual  hos 
tilities  against  the  Confederate  States,  or  aid  and  abet  the  United  States  in 
the  existing  war  against  the  Confederate  States. 

SEC.  2.  And  be  it  further  enacted,  That  it  is,  and  shall  be,  the  duty  of 
each  and  every  citizen  of  these  Confederate  States  speedily  to  give  informa 
tion  to  the  officers  charged  with  the  execution  of  this  law  of  any  and  every 
lands,  tenements  and  hereditaments,  goods  and  chatiels,  rights  and  credits 
within  this  Confederacy,  and  of  every  right  and  interest  therein  held,  owned, 
possessed  or  enjoyed  by  or  for  any  alien  enemy  as  aforesaid. 

SEC.  3.  Be  it  further  enacted,  That  it  shall  be  the  duty  of  every  attor 
ney,  agent,  former  partner,  trustee  or  other  person  holding  or  controlling 
any  such  lands,  tenements  or  hereditaments,  goods  or  chattels,  rights  or 
credits,  or  any  interest  therein,  of  or  for  any  such  alien  enemy,  speedily  to 
inform  the  receiver  hereinafter  provided  to  be  appointed,  of  the  same,  and 
to  render  an  account  thereof,  and.  so  far  as  is  practicable,  to  place  the  same 
in  the  hands  of  such  receiver ;  whereupon,  such  person  shall  be  fully  acquitted 
of  all  responsibility  for  property  and  effects  so  reported  and  turned  over. 
And  any  such  person  wilfully  failing  to  give  such  information  and  render 
such  account  shall  be  guilty  of  a  high  misdemeanor,  and  upon  indictment 
and  conviction,  shall  be  fined  in  a  sum  not  exceeding  five  thousand  dollars, 
and  imprisoned  not  longer  than  six  months,  said  fine  and  imprisonment  to 
be  determined  by  the  court  trying  the  case,  and  shall  further  be  liable  to  be 
sued  by  said  Confederate  States,  and  subjected  to  pay  double  the  value  of 
the  estate,  property  or  effects  of  the  alien  enemy  held  by  him  or  subject  to 
his  control. 

SEC.  4.  It  shall  be  the  duty  of  the  several  judges  of  this  Confederacy 
to  give  this  act  specially  in  charge  to  the  grand  juries  of  these  Confederate 
States,  and  it  shall  be  their  duty  at  each  sitting  well  and  truly  to  enquire 
and  report  all  lands,  tenements  and  hereditaments,  goods  and  chattels,  rights 
and  credits,  and  every  interest  therein,  within  the  jurisdiction  of  said  grand 
jury,  held  by  or  for  any  alien  enemy,  and  it  shall  be  the  duty  of  the  several 
receivers,  appointed  under  this  act,  to  take  a  copy  of  such  report,  and  to 
proceed  in  obtaining  the  possession  and  control  of  all  such  property  and 
effects  reported,  and  to  institute  proceedings  for  the  sequestration  thereof  in 
the  manner  hereinafter  provided. 

SEC.  5.  Be  it  further  enacted,  That  each  judge  of  this  Confederacy  shall, 
as  early  as  practicable,  appoint  a  receiver  for  each  section  of  the  State  for 
which  he  holds  a  court,  and  shall  require  him,  before  entering  upon  the  duties 
of  his  office,  to  give  a  bond  in  such  penalty  as  may  be  prescribed  by  the 
judge,  with  good  and  sufficient  security,  to  be  approved  by  the  judge,  con 
ditioned  that  he  will  diligently  and  faithfully  discharge  the  duties  imposed 
upon  him  by  law.  And  said  officer  shall  hold  his  office  at  the  pleasure  of 
the  judge  of  the  district  or  section  for  which  he  is  appointed,  and  shall  be 
removed  for  incompetency,  or  inefficiency,  or  infidelity  in  the  discharge  of 
his  trust.  And  should  the  duties  of  any  such  receiver,  at  any  time,  appear 
to  the  judge  to  be  greater  than  can  be  efficiently  performed  by  him,  then  it 
shall  be  the  duty  of  the  judge  to  divide  the  district  or  section  into  one  or 
more  other  receivers'  districts,  according  to  the  necessities  of  the  case,  and 
to  appoint  a  receiver  for  each  of  said  newly  created  districts.  And  every 
such  receiver  shall  also,  before  entering  upon  the  duties  of  his  office,  make 
oath  in  writing  before  the  judge  of  the  district  or  section  for  which  he  is  ap 
pointed,  diligently,  well  and  truly  to  execute  the  duties  of  his  office. 


NOTES    TO    THE    FORTY-THIRD    EDITION.  413 

SEC.  6.  Be  it  further  enacted,  That  it  shall  be  the  dutyof  the  several 
receivers  aforesaid  to  take  the  possession,  control  and  management  of  all 
lands,  tenements  and  hereditaments,  goods  and  chattels,  rights  and  credits 
of  each  and  every  alien  enemy  within  the  section  for  which  he  acts.  And 
to  this  end  he  is  empowered  and  required,  whenever  necessary  for  accom 
plishing  the  purposes  of  this  act,  to  sue  for  and  recover  the  same  in  the 
name  of  said  Confederate  States,  allowing,  in  the  recovery  of  credits,  such 
delays  as  may  have  been,  or  may  be,  prescribed  in  any  State  as  to  the  col 
lection  of  debts  therein  during  the  war.  And  the  form  and  mode  of  action, 
whether  the  matter  be  of  jurisdiction  in  law  or  equity,  shall  be  by  petition 
to  the  court  setting  forth,  as  best  he  can,  the  estate,  property,  right  or  thing 
sought  to  be  recovered,  \vith  the  name  of  the  person  holding,  exercising 
supervision  over,  in  possession  of,  or  controlling  the  same,  as  the  case  may 
be,  and  praying  a  sequestration  thereof.  Notice  shall  thereupon  be  forth 
with  issued  by  the  clerk  of  the  court,  or  by  the  receiver,  to  such  person, 
with  a  copy  of' the  petition,  and  the  same  shall  be  served  by  the  marshal  or 
his  deputy  and  returned  to  the  court  as  other  mesne  process  in  law  cases ; 
whereupon,  the  cause  shall  be  docketed  and  stand  for  trial  in  the  court  ac 
cording  to  the  usual  course  of  its  business,  and  the  court  or  judge  shall,  at 
any  time,  make  all  orders  of  seizure  that  may  seem  necessary  to  secure  the 
subject-matter  of  the  suit  from  danger  of  loss,  injury,  destruction  or  waste, 
and  may,  pending  the  cause,  make  orders  of  sale  in  cases  that  may  seem  to 
such  judge  or  court  necessary  to  preserve  any  property  sued  for  from  per 
ishing  or  waste :  Provided,  That  in  any  case  when  the  Confederate  judge 
shall  find  it  to  be  consistent  with  the  safe-keeping  of  the  property  so  seques 
tered,  to  leave  the  same  in  the  hands  and  under  the  control  of  any  debtor 
or  person  in  whose  hands  the  real  estate  and  slaves  were  seized,  who  may 
be  in  possession  of  the  said  property  or  credits,  he  shall  order  the  same  to 
remain  in  the  hands  and  under  the  control  of  said  debtor  or  person  in  whose 
hands  the  real  estate  and  slaves  were  seized,  requiring  in  every  such  case 
such  security  for  the  safe-keeping  of  the  property  and  credits  as  he  may 
deem  sufficient  for  the  purpose  aforesaid,  and  to  abide  by  such  further  or 
ders  as  the  court  may  make  in  the  premises.  But  this  proviso  shall  not 
apply  to  bank  or  other  corporation  stock,  or  dividends  due,  or  which  may 
be  due  thereon,  or  to  rents  on  real  estates  in  cities.  And  no  debtor  or  other 
person  shall  be  entitled  to  the  benefit  of  this  proviso  unless  he  has  first  paid 
into  the  hands  of  the  receiver  all  interests  or  net  profits  which  may  have 
accrued  since  the  twenty-first  May,  eighteen  hundred  and  sixty-one ;  and,  in 
all  cases  coming  under  this  proviso,  such  debtor  shall  be  bound  to  pay  over 
annually  to  the  receiver  all  interest  which  may  accrue  as  the  same  falls  due ; 
and  the  person  in  whose  hands  any  other  property  may  be  left  shall  be 
bound  to  account  for,  and  pay  over  annually  to  the  receiver,  the  net  income 
or  profits  of  said  property,  and  on  failure  of  such  debtor  or  other  person  to 
pay  over  such  interest,  net  income  or  profits,  as  the  same  falls  due,  the  re 
ceiver  may  demand  and  recover  the  debt  or  property.  And  wherever,  after 
ten  days'  notice  to  any  debtor  or  person  in  whose  hands  property  or  debts 
may  be  left,  of  an  application  for  further  security,  it  shall  be  made  to  appear 
to  the  satisfaction  of  the  court  that  the  securities  of  such  debtor  or  person 
are  not  ample,  the  court  may,  on  the  failure  of  the  party  to  give  sufficient 
additional  security,  render  judgment  against  all  the  parties  on  the  bond  for 
the  recovery  of  the  debt  or  property:  Provided, further,  That  said  court 
may,  whenever,  in  the  opinion  of  the  judge  thereof,  the  public  exigencies 
may  require  it,  order  the  money  due  as  aforesaid  to  be  demanded  by  the  re 
ceiver,  and  if  upon  demand  of  the  receiver,  made  in  conformity  to  a  decreta. 
order  of  the  court  requiring  said  receiver  to  collect  any  debts  for  the  pay- 


414  NOTES    TO    THE    FORTY-THIRD    EDITION. 

ment  of  which  security  may  have  been  given  under  the  provisions  of  this 
act,  the  debtor  or  his  security  shall  fail  to  pay  the  same,  then  upon  ten  days' 
notice  to  said  debtor  and  his  security,  given  by  said  receiver,  of  a  motion  to 
be  made  in  said  court  for  judgment  for  the  amount  so  secured,  said  court, 
at  the  next  term  thereof,  may  proceed  to  render  judgment  against  said  prin 
cipal  and  security,  or  against  the  party  served  with  such  notice,  for  the  sum 
so  secured  with  interest  thereon,  in  the  name  of  said  receiver,  and  to  issue 
execution  therefor. 

SEC.  7.  Any  person  in  the  possession  and  control  of  the  subject-matter 
of  any  such  suit,  or  claiming  any  interest  therein,  may,  by  order  of  the 
court,  be  admitted  as  a  defendant  and  be  alloAved  to  defend  to  the  extent  of 
the  interest  propounded  by  him ;  but  no  person  shall  be  heard  in  defence 
until  he  shall  file  a  plea,  verified  by  affidavit  and  signed  by  him,  setting  forth 
that  no  alien  enemy  has  any  interest  in  the  right  which  he  asserts,  or  for 
which  he  litigates,  either  directly  or  indirectly,  by  trust,  open  or  secret,  and 
that  he  litigates  solely  for  himself,  or  for  some  citizens  of  the  Confederate 
States  whom  he  legally  represents ;  and  when  the  defence  is  conducted  for 
or  on  account  of  another,  in  whole  or  part,  the  plea  shall  set  forth  the  name 
and  residence  of  such  other  person,  and  the  relation  that  the  defendant  bears 
to  him  in  the  litigation.  If  the  cause  involves  matter  which  should  be  tried 
by  a  jury  according  to  the  course  of  the  common  law,  the  defendant  shall  be 
entitled  to  a  jury  trial.  If  it  involves  matters  of  equity  jurisdiction,  the 
court  shall  proceed  according  to  its  usual  mode  of  procedure  in  such  cases, 
and  the  several  courts  of  this  Confederacy  may,  from  time  to  time,  establish 
rules  of  procedure  under  this  act,  not  inconsistent  with  the  act  or  other  laws 
of  these  Confederate  States. 

SEC.  8.  Be  it  further  enacted,  That  the  clerk  of  the  court  shall,  at  the 
request  of  the  receiver,  from  time  to  time,  issue  writs  of  garnishment,  di 
rected  to  one  or  more  persons,  commanding  them  to  appear  at  the  then  sit 
ting,  or  at  any  future  term  of  the  court,  and  to  answer  under  oath  what 
property  or  effects  of  any  alien  enemy  he  had  at  the  service  of  the  process, 
or  since  has  had  under  his  possession  or  control  belonging  to  or  held  for  an 
alien  enemy,  or  in  what  sum,  if  any,  he  is  or  was  at  the  time  of  service  of 
the  garnishment,  or  since  has  been  indebted  to  any  alien  enemy,  and  the 
court  shall  have  power  to  condemn  the  property  or  effects,  or  debts,  accord 
ing  to  the  answer,  and  to  make  such  rules  and  orders  for  the  bringing  in  of 
third  persons  claiming  or  disclosed  by  the  answer  to  have  an  interest  in  the 
litigation  as  to  it  shall  seem  proper ;  but  in  no  case  shall  any  one  be  heard 
in  respect  thereto  until  he  shall,  by  sworn  plea,  set  forth  substantially  the 
matters  before  required  of  parties  pleading.  And  the  decree  or  judgment 
of  the  court,  rendered  in  conformity  to  this  act,  shall  forever  protect  the 
garnishee  in  respect  to  the  matter  involved.  And  in  all  cases  of  garnishment 
under  this  act,  the  receiver  may  test  the  truth  of  the  garnishee's  answer  by 
filing  a  statement,  under  oath,  that  he  believes  the  answer  to  be  untrue,  spe 
cifying  the  particulars  in  which  he  believes  the  garnishee  has,  by  omission 
or  commission,  not  answered  truly ;  whereupon  the  court  shall  cause  an 
issue  to  be  made  between  the  receiver  and  garnishee,  and  judgment  rendered 
as  upon  the  trial  of  other  issues.  And  in  all  cases  of  litigation  under  this 
act  the  receiver  may  propound  interrogatories  to  the  adverse  party  touching 
any  matter  involved  in  the  litigation,  a  copy  of  which  shall  be  served  on  the 
opposite  party  or  his  attorney,  and  which  shall  be  answered  under  oath  within 
thirty  days  of  such  service,  and  upon  failure  so  to  answer,  the  court  shall 
make  such  disposition  of  the  cause  as  shall  to  it  seem  most  promotive  of 
justice,  or  should  it  deem  answers  to  the  interrogatories  necessary  in  order 
to  secure  a  discovery,  the  court  shall  imprison  the  party  in  default  until  full 
answers  shall  be  made. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  415 

SEC.  9.  It  shall  be  the  duty  of  the  District  Attorney  of  the  Confederate 
States  diligently  to  prosecute  all  causes  instituted  under  this  act,  and  he 
shall  receive  as  a  compensation  therefor  two  per  cent,  upon  and  from  the 
fruits  of  all  litigation  instituted  under  this  act :  Provided,  That  no  matter 
shall  be  called  litigated  except  a  defendant  be  admitted  by  the  court,  and  a 
proper  plea  be  filed. 

SEC.  10.  Be  it  further  enacted,  That  each  receiver  appointed  under  this 
act  shall,  at  least  every  six  months,  and  as  much  oftener  as  he  may  be  re 
quired  by  the  court,  render  a  true  and  perfect  account  of  all  matters  in  his 
hands  or  under  his  control  under  the  law,  and  shall  make  and  state  just  and 
perfect  accounts  and  settlements  under  oath  of  his  collections  of  moneys  and 
disbursements  under  this  law,  stating  accounts  and  making  settlements  of 
all  matters  separately,  in  the  same  way  as  if  he  were  administrator  of  sev 
eral  estates  of  deceased  persons  by  separate  appointments.  And  the  settle 
ments  and  decrees  shall  be  for  each  case  or  estate  separately,  so  that  the 
transaction  in  respect  to  each  alien  enemy's  property  may  be  kept  recorded 
and  preserved  separately.  No  settlement  as  above  provided  shall,  however, 
be  made  until  judgment  or  decree  of  sequestration  shall  have  passed,  but 
the  court  may  at  any  time  pending  litigation,  require  an  account  of  matters 
in  litigation  and  in  the  possession  of  the  receiver,  and  may  make  such  orders 
touching  the  same  as  shall  protect  the  interest  of  the  parties  concerned. 

SEC.  11.  When  the  accounts  of  any  receiver  shall  be  filed  respecting  any 
matter  which  has  passed  sequestration,  the  court  shall  appoint  a  day  for  set 
tlement  and  notice  thereof  shall  be  published  consecutively  for  four  weeks 
in  some  newspaper  near  the  place  of  holding  the  court,  and  the  clerk  of  the 
court  shall  send  a  copy  of  such  newspaper  to  the  District  Attorney  of  the 
Confederate  States,  for  the  court,  where  the  matter  is  to  be  heard,  and  it 
shall  be  the  duty  of  said  District  Attorney  to  attend  the  settlement  and  rep 
resent  the  government  and  to  see  that  a  full,  true  and  just  settlement  is 
made.  The  several  settlements  preceding  the  final  one  shall  be  interlocu 
tory  only,  and  may  be  impeached  at  the  final  settlements,  which  latter  shall 
be  conclusive,  unless  reversed  or  impeached  within  two  years,  for  fraud. 

SEC.  12.  Be  it  further  enacted,  That  the  court  having  jurisdiction  of  the 
matter  shall,  whenever  sufficient  cause  is  shown  therefor,  direct  the  sale  of 
any  personal  property,  other  than  slaves,  sequestered  under  this  act,  on  such 
terms  as  to  it  shall  seem  best,  and  such  sale  shall  pass  the  title  of  the  person 
as  whose  property  the  same  has  been  sequestered. 

SEC.  13.  All  settlements  of  accounts  of  receivers  for  sequestered  prop 
erty  shall  be  recorded  and  a  copy  thereof  shall  be  forwarded  by  the  clerk  of 
the  court  to  the  Treasurer  of  the  Confederate  States  within  ten  days  after 
the  decree,  interlocutory  or  final,  has  been  passed ;  and  all  balances  found 
against  the  receiver  shall  by  him  be  paid  over  into  the  court,  subject  to  the 
order  of  the  Treasurer  of  the  Confederate  States,  and  upon  the  failure  of 
the  receiver  for  five  days  to  pay  over  the  same,  execution  shall  issue  there 
for,  and  he  shall  be  liable  to  attachment  by  the  court  and  to  suit  upon  his 
bond.  And  any  one  embezzling  any  money  under  this  act  shall  be  liable 
to  indictment,  and  on  conviction  shall  be  confined  at  hard  labor  for  not  less 
than  six  months  nor  more  than  five  years,  in  the  discretion  of  the  court, 
and  fined  in  double  the  amount  embezzled. 

SEC.  14.  Be  it  further  enacted,  That  the  President  of  the  Confederate 
States  shall,  by  and  with  the  advice  and  consent  of  Congress,  or  of  the  Sen 
ate,  if  the  appointment  be  made  under  the  permanent  Government,  appoint 
three  discreet  Commissioners,  learned  in  the  law,  who  shall  hold  at  the  seat 
of  Government  two  terms  each  year,  upon  notice  given,  who  shall  sit  so 
long  as  the  business  before  them  shall  require  ;  whose  duty  it  shall  be,  under 


416  NOTES    TO    THE    FORTY-THIRD    EDITION. 

such  rules  as  they  may  adopt,  to  hear  and  adjudge  such  claims  as  may  be 
brought  before  them  by  any  one  aiding  this  Confederacy  in  the  present  war 
against  the  United  States,  who  shall  allege  that  he  has  been  put  to  loss 
under  the  act  of  the  United  States,  in  retaliation  of  which  this  act  is  passed, 
or  under  any  other  act  of  the  United  States,  or  of  any  State  thereof,  author 
izing  the  seizure,  condemnation  or  confiscation  of  the  property  of  any  citi 
zen  or  resident  of  the  Confederate  States,  or  other  person  aiding  said  Con 
federate  States  in  the  present  war  with  the  United  States,  and  the  finding 
of  such  Commissioners  in  favor  of  any  such  claim  shall  be  prima  facie  evi 
dence  of  the  correctness  of  the  demand,  and  whenever  Congress  shall  pass 
the  claim,  the  same  shall  be  paid  from  any  money  in  the  Treasury  derived 
from  sequestration  under  this  act ;  Provided,  That  said  Board  of  Commis 
sioners  shall  not  continue  beyond  the  organization  of  the  Court  of  Claims, 
provided  for  by  the  Constitution  ;  to  which  Court  of  Claims  the  duties  herein 
provided  to  be  discharged  by  Commissioners  shall  belong  upon  the  organ 
ization  of  said  Court.  The  salaries  of  said  Commissioners  shall  be  at  the 
rate  of  two  thousand  five  hundred  dollars  per  annum,  and  shall  be  paid  from 
the  Treasury  of  the  Confederacy.  And  it  shall  be  the  duty  of  the  Attorney 
General  or  his  assistant  to  represent  the  interests  of  this  Government  in  all 
cases  arising  under  triis  act  before  said  Board  of  Commissioners. 

SEC.  15.  Be  it  further  enacted,  That  all  expenses  incurred  in  proceedings 
under  this  act  shall  be  paid  from  the  sequestered  fund,  and  the  Judges,  in 
settling  accounts  with  Receivers,  shall  make  to  them  proper  allowances  of 
compensation,  taking  two  and  a  half  per  cent,  on  receipts,  and  the  same 
amount  on  expenditures,  as  reasonable  compensation,  in  all  cases.  The  fees 
of  the  officers  of  court  shall  be  such  as  are  allowed  by  law  for  similar  ser 
vices  in  other  cases,  to  be  paid,  however,  only  from  the  sequestered  fund ; 
Provided,  That  all  sums  realized  by  any  Receiver  in  one  year  for  his  services, 
exceeding  five  thousand  dollars,  shall  be  paid  into  the  Confederate  Treasury, 
for  the  use  of  the  Confederacy. 

SEC.  16.  Be  it  further  enacted,  That  the  Attorney  General  shall  prescribe 
such  uniform  rules  of  proceeding  under  this  law,  not  herein  otherwise  pro 
vided  for,  as  shall  meet  the  necessities  of  the  case. 

SEC.  17.  Be  it  further  enacted,  That  appeals  may  lie  from  any  final  de 
cision  of  the  court  under  this  law,  in  the  same  manner  and  within  the  same 
time  as  is  now,  or  hereafter  may  be  by  law  prescribed  for  appeals  in  other 
civil  cases. 

SEC.  18.  Be  it  further  enacted,  That  the  wrord  "person"  in  this  law  in 
cludes  all  private  corporations  ;  and  in  all  cases,  when  corporations  become 
parties,  and  this  law  requires  an  oath  to  be  made,  it  shall  be  made  by  some 
officer  of  such  corporation. 

SEC.  19.  Be  it  further  enacted,  That  the  courts  are  vested  with  jurisdic 
tion,  and  required  by  this  act,  to  settle  all  partnerships  heretofore  existing 
between  a  citizen  and  one  who  is  an  alien  enemy ;  to  separate  the  interest 
of  the  alien  enemy,  and  to  sequestrate  it.  And  shall,  also,  sever  all  joint 
rights  when  an  alien  enemy  is  concerned,  and  sequestrate  the  interest  of 
such  alien  enemy. 

SEC.  20.  Be  it  further  enacted,  That  in  all  cases  of  administration  of 
any  matter  or  thing,  under  this  act,  the  court  having  jurisdiction  may  make 
such  orders  touching  the  preservation  of  the  property  or  effects  under  the 
direction  or  control  of  the  Receiver,  not  inconsistent  with  the  foregoing  pro 
visions,  as  to  it  shall  seem  proper.  And  the  Receiver  may,  at  any  time,  ask 
and  have  the  instructions  of  the  court,  or  Judge,  respecting  his  conduct  in 
the  disposition  or  management  of  any  property  or  effects  under  his  control. 

SEC.  21.  That  the  Treasury  notes  of  this  Confederacy  shall  be  receivable 
in  payment  of  all  purchases  of  property  or  effects  sold  under  this  act. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  417 

SEC.  22.  Be  it  further  enacted,  That  nothing  in  this  act  shall  be  con 
strued  to  destroy  or  impair  the  lien  or  other  rights  of  any  creditor,  a  citizen 
or  resident  of  either  of  the  Confederate  States,  or  of  any  other  person,  a 
citizen  or  resident,  of  any  country,  State,  or  Territory,  with  which  this  Con 
federacy  is  in  friendship,  and  which  person  is  not  in  actual  hostility  to  this 
Confederacy.  And  any  lien  or  debt  claimed  against  any  alien  enemy,  within 
the  meaning  of  this  act,  shall  be  propounded  and  filed  in  the  court,  in  which 
the  proceedings  of  sequestration  are  had,  within  twelve  months  from  the 
institution  of  such  proceedings  for  sequestration ;  and  the  court  shall  cause 
all  proper  parties  to  be  made  and  notices  to  be  given,  and  shall  hear  and 
determine  the  respective  rights  of  all  parties  concerned ;  Provided,  however, 
That  no  sales  or  payments  over  of  money  shall  be  delayed  for,  or  by  reason 
of,  such  rights  or  proceedings ;  but  any  money  realized  by  the  Receiver, 
whether  paid  into  the  court,  or  Treasury,  or  still  in  the  Receiver's  hands, 
shall  stand  in  lieu  of  that  which  produced  said  money,  and  be  held  to  answer 
the  demands  of  the  creditors  aforesaid,  in  the  same  manner  as  that  which 
produced  such  money  was.  And  all  claims  not  propounded  and  filed  as 
aforesaid,  within  twelve  months  as  aforesaid,  shall  cease  to  to  exist  against 
the  estate,  property,  or  effects  sequestrated,  or  the  proceeds  thereof. 

Approved  August  30,  1861. 

On  the  23d  of  December,  1861,  the  Confederates  passed 

CHAP.  XVII.  —  An  Act  in  relation  to  Taxes  on  Property  which  has  been,  or 
which  is  liable  to  be  sequestered  as  the  Property  of  alien  Enemies. 

The  Congress  of  the  Confederate  States  of  America  do  enact,  as  follows  : 
That  it  shall  be  the  duty  of  the  Receivers  under  the  sequestration  act,  to 
pay  all  taxes  upon  property  of  alien  enemies,  which  is  liable  therefor,  within 
their  respective  districts,  out  of  any  funds  in  their  hands  as  receivers,  said 
payment  to  be  charged  to  the  account  of  the  property  upon  which  the  tax 
has  been  paid :  Provided,  however,  If  it  appear  to  any  Receiver  that  such 

Eroperty,  in  any  case,  is  not  worth  more  than  the  taxes  for  which  it  is  liable, 
e  shall  report  the  facts  to  the  Secretary  of  the  Treasury,  whose  duty  it 
shall  be  to  instruct  the  Receiver  whether  he  shall  pay  the  taxes  or  allow  the 
property  to  be  sold  for  the  taxes. 

SEC.  2.  That  the  Receivers  be  authorized  to  sell  by  order  of  court,  and 
in  such  manner,  and  upon  such  terms,  as  the  court  may  prescribe,  any  prop 
erty  within  their  respective  districts,  which  has  been  sequestered,  or  which 
is  liable  thereto,  for  the  purpose  of  raising  money  for  the  payment  of  the 
taxes  aforesaid. 

SEC.  3.  That  whenever  a  Receiver  has  not  funds  in  hand,  over  and  above 
what  is  necessary  for  other  expenditures,  sufficient  to  pay  said  taxes,  and 
cannot  obtain  the  same  by  sale  as  aforesaid,  within  the  time  fixed  for  the 
payment  of  said  taxes,  he  is  hereby  authorized  to  give,  to  the  tax  collector 
charged  with  the  collection  of  the  taxes,  a  certificate  of  the  amount  due,  and 
he  shall  specify  therein  the  property  upon  which  the  same  is  due  ;  and  the 
Secretary  of  the  Treasury  shall  pay  the  amount  so  certified  to  be  due,  and 
shall  cause  the  same  to  be  charged  to  the  sequestration  fund.  But  the  giv 
ing  of  the  certificate  shall  be  subject  to  the  same  condition  precedent  as 
provided  in  regard  to  payment  in  the  first  section  of  this  act. 

SEC.  4.  That  the  Secretary  of  the  Treasury  be  authorized  to  make  agree 
ments  with  the  several  States,  counties,  cities  and  towns  for  the  postpone 
ment  of  the  collection  of  taxes  for  which  the  property  of  alien  enemies  is  se 
questered,  or  liable  to  be ;  and  in  case  any  one  or  more  of  the  States,  coun- 

53 


418  NOTES    TO    THE    FORTY-THIRD    EDITION. 


ties,  cities  or  towns  consent  to  the  same,  he  is  hereby  empowered  to  issue 
certificates  for  the  amount  due,  bearing  interest  at  the  rate  of  six  per  cent, 
per  annum,  which  shall  bind  the  government  to  pay  the  same,  and  which, 
when  paid,  shall  be  charged  to  the  sequestration  fund'. 

SEC.  5.  That  whenever  the  property  of  an  alien  enemy  sequestered,  or 
liable  thereto,  has  been,  or  shall  hereafter  be,  sold  for  taxes,  the  Secretary 
of  the  Treasury  is  hereby  authorized,  with  the  assent  of  the  State  in  which 
the  property  has  been  sold,  to  redeem  the  same  by  the  payment  of  the  sum 
or  sums  required  to  be  paid  by  citizens  in  such  case,  or  by  the  issue  of  cer 
tificates  therefor,  as  hereinbefore  provided,  should  he  deem  it  advisable,  and 
in  all  such  cases,  such  property  shall  go  into  the  hands  of  the  Receiver  for 
the  district  in  which  the  same  is  situate,  and  be  held  and  accounted  for  in 
the  same  manner  as  other  sequestered  property ;  provided  the  amount  of 
the  redemption  shall  be  charged  to  the  sequestration  fund. 

Approved  December  23,  1861. 


On  the  15th  of  February,  1862,  the  Confederates  passed 

CHAP.  LXXI. — An  Act  to  alter  and  amend  an  Act  entitled"  An  Act  for 
the  Sequestration  of  the  Estates,  Property  and  Effects  of  alien  Enemies, 
and  for  Indemnity  of  Citizens  of  the  Confederate  States,  and  Persons 
aiding  the  same  in  the  existing  War  with  the  United  States,"  approved 
August  thirtieth,  eighteen  hundred  and  sixty-one. 

'  The  Congress  of  the  Confederate  States  of  America  do  enact,  That  all 
and  every  the  lands,  tenements  and  hereditaments,  goods  and  chattels,  rights 
and  credits,  and  every  right  and  interest  therein  embraced  by  said  act  of  se 
questration,  of  which  this  act  is  an  alteration  and  amendment,  shall  be  col 
lected  and  sold,  as  provided  for  in  this  act,  and  the  proceeds  paid  into  the 
Treasury  of  the  Confederate  States ;  but  in  no  case  shall  a  debt,  or  other 
chose  in  action,  be  sold. 

SEC.  2.  Be  it  further  enacted,  That  all  money  realized  under  this  act,  and 
the  act  to  which  it  is  an  amendment,  shall  be  applied  to  the  equal  indemnity 
of  all  persons,  loyal  citizens  of  the  Confederate  States,  or  persons  aiding 
the  same  in  the  present  war,  who  have  suffered,  or  may  hereafter  suffer,  loss 
or  damage  by  confiscation,  by  the  Government  of  the  United  States,  or  by 
any  State  government,  or  pretended  government,  acknowledging  and  aiding 
the  Government  of  the  United  States  in  this  war,  or  by  such  acts  of  the 
enemy,  or  other  causes  incident  to  the  war,  as,  by  future  act  of  Congress, 
may  be  described  or  defined,  as  affording,  under  the  circumstances,  proper 
cases  for  indemnity.  And  all  money  realized  as  aforesaid,  shall  be  paid  into 
the  Treasury  of  said  Confederate  States,  as  provided  by  the  act  to  which 
this  is  an  amendment ;  and  the  faith  of  the  Confederate  States  is  hereby 
pledged  that  the  same  shall  be  refunded,  as  required  for  the  purposes  afore 
said.  And  the  Secretary  of  the  Treasury  shall  cause  a  separate  account  of 
said  money  to  be  kept  in  well  bound  books  procured  for  that  purpose. 

SEC.  3.  Be  it  further  enacted,  That  it  shall  be  the  duty  of  every  person 
in  actual  possession  of,  or  having  under  his  control,  any  money,  property, 
effects  or  evidences  of  debt,  belonging  to  an  alien  enemy,  speedily  to  inform 
the  receiver,  and  to  render  an  account  thereof,  and  at  once  to  pay  over  to 
the  receiver,  and  to  deliver  to  him  such  property  and  effects,  and  evidences  of 
debt,  and  such  payment  and  delivery  shall  be  made  without  regard  to  whether 
any  proceedings  have  or  have  not  been  instituted  to  sequestrate  the  same. 
And  any  person  who,  after  giving  such  information,  shall  fail  so  to  pay  over 
and  deliver  on  demand,  made  by  the  receiver,  shall  stand  in  contempt,  and 


NOTES    TO    THE   FORTY-THIRD    EDITION.  419 


the  receiver  shall  at  once  move  the  court  or  judge  to  proceed  against  such 
party  as  in  other  cases  of  contempt;  and  the  court  or  judge  may  imprison 
the  offender  until  he  shall  fully  comply  with  the  requirements  of  this  act. 
And  such  payment  or  delivery  shall  fully  acquit  and  discharge  the  party  from 
all  and  every  claim  for  or  on  account  of  such  money,  property,  effects  and 
evidences  of  debt.  And  the  receiver  shall  give  such  person  a  receipt,  spe 
cifying  the  amount  of  money,  the  property,  effects  and  evidences  of  debt 
paid  and  delivered,  and  the  name  of  the  alien  enemy  on  account  of  whom 
the  same  shall  be  paid  and  delivered :  Provided,  That  when  the  person  hav 
ing  the  possession  or  control  of  any  money  of  an  alien  enemy,  asserts  a 
debt  or  claim  against  such  alien  enemy  in  his  own  favor,  he  may  file  it  in 
writing  in  the  proper  court,  swearing  that  he  believes  himself  justly  entitled 
to  the  same,  and  thereupon  he  shall  not  be  compelled,  in  the  first  instance,  to 
pay  over  to  the  receiver  the  amount  thus  propounded  and  claimed  by  him  ; 
but  the  court  shall  then  proceed  to  examine  and  try  the  validity  of  the  said 
debt  or  claim,  and  decree  according  to  the  facts  found,  and  the  rights  and 
justice  of  the  case.  And  if  the  court  decides  against  the  debt  or  claim,  the 
party  setting  up  the  same  shall  forthwith  pay  over  the  sum  so  retained  by 
him.  And  if  the  court  shall  decree  in  favor  of  the  debt  or  claim  thus  pro 
pounded,  and  it  exceeds  the  entire  amount  originally  in  possession  of  such 
debtor  or  claimant,  he  shall  pay  no  costs ;  otherwise  he  shall  pay  all  costs 
incident  to  the  proceedings. 

SEC.  4.  This  act,  and  the  act  to  which- it  is  an  amendment,  shall  not  op 
erate  to  avoid  any  payment,  bo?ia  fide  made  to  an  alien  enemy,  or  to  affect 
property  of  any  kind,  bona  fide  and  absolutely  transferred,  or  conveyed,  by 
an  alien  enemy  to  a  faithful  citizen  of  the  Confederate  States,  prior  to  the 
thirtieth  day  of  August,  eighteen  hundred  and  sixty-one. 

SEC.  o.  In  cases  of  partnership  property  and  effects,  the  resident  partner, 
or  partners,  shall  be  dealt  with  in  all  respects  as  surviving  partners  in  cases 
of  a  dissolution  of  partnership  by  the  death  of  one  or  more  of  the  partners, 
according  to  the  laws  of  the  place  of  the  principal  place  of  business  of  the 
partnership  ;  and  the  receiver  shall  have  the  same  remedies  against  such 
resident  partners  as  the  representatives  of  a  deceased  partner  would  be  en 
titled  to  in  like  case. 

SEC.  6.  The  following  persons  shall  not  be  taken  to  be  alien  enemies  under 
this  act,  or  the  act  to  which  this  is  an  amendment : 

First.  Persons  who  now  have  bona  fide  become  permanent  residents  of 
any  State  of  this  Confederacy,  and  are  actually  residing  and  domiciled  within 
the^same,  yielding  and  acknowledging  allegiance  thereto,  and  who  have  not, 
during  the  present  war,  voluntarily  contributed  to  the  cause  of  the  enemy. 

Second.  All  persons  born  within  any  State  of  this  Confederacy,  or  natives 
of  a  neutral  country,  who  since  the  breaking  out  of  the  war,  have  abandoned 
their  domiciles  and  ceased  their  business  in  the  enemy's  country,  and  all 
persons  aforesaid  who  have  bona  fide  commenced,  or  attempted  to  remove 
themselves  and  effects  from  the  enemy's  country,  and  who  have  been,  and 
still  are  prevented  from  completing  said  removal  by  the  force  or  power  of 
the  enemy,  or  who  from  physical  infirmity  are  incapable  of  removing. 

Third.  All  subjects  or  citizens  of  neutral  countries  who  cannot  be  shown 
to  have  voluntarily  contributed  to  the  cause  of  the  enemy,  and  all  persons 
who,  though  citizens  of  the  enemy's  country,  have  abandoned  that  country 
on  account  of  their  opposition  to  the  war,  or  sympathy  for  the  people  of  the 
Confederate  States. 

Fourth.  All  married  women  natives  of  any  State  of  this  Confederacy, 
who,  or  whose  husbands  shall  not  be  shown  to  have  voluntarily  contributed 
to  the  cause  of  the  enemy.  All  persons  non  compos  mentis,  and  all  minors 


420  NOTES    TO    THE    FORTY-THIRD    EDITION. 

whose  fathers  or  mothers,  were,  or  are,  natives  of  this  Confederacy  and 
whose  property  and  persons  are  controlled  by  guardians  resident  in  the  Con 
federate  States,  and  who  have  not  voluntarily  contributed  to  the  enemy's 
cause ;  and  all  minors  under  the  age  of  sixteen  years,  who  were  born  in  any 
State  of  this  Confederacy,  or  in  any  State  exempted  from  the  operations  of 
this  act  while  their  parents  were  domiciled  in  such  State  and  who  have  not 
taken  up  arms  against  the  Confederate  States. 

Fifth.  Free  persons  of  color,  who,  by  the  laws  of  any  State  have  been 
compelled  to  remove  beyond  the  limits  thereof,  and  are  by  law  prohibited 
from  returning  to  such  State,  and  who  have  not  in  anywise  aided  the  enemy. 

SEC.  7.  The  next  of  kin  in  the  direct  ascending  and  descending  lines  of 
any  alien  enemy,  faithful  citizens  of  any  of  the  Confederate  States,  or  en 
gaged  in  their  military  or  naval  service  shall  be  entitled  to  have  decreed 
them  (they  paying  all  costs)  the  property,  effects  and  credits  of  such  alien 
enemy  as  if  dead,  intestate,  leaving  no  other  heirs  or  distributees,  chargeable, 
however,  in  their  hands,  as  in  case  of  administration  or  heirship,  with  the 
debts  of  such  alien  enemies  due  to  faithful  citizen-s  of  any  Confederate  State. 

SEC.  8.  All  sales  of  property  under  this  act  shall  be  made  by  the  receiv 
ers  at  public  auction  to  the  highest  bidder  and  on  such  terms  and  such  notice 
of  the  time  and  place  of  sale  as  the  court  may  prescribe,  and  shall  be  duly 
reported  to  the  court  by  such  receivers  at  the  term  next  after  such  sale ; 
but  no  conveyance  of  title  shall  be  made  to  the  purchaser  of  the  property 
until  the  confirmation  of  the  sale  by  the  court  and  the  payment  of  the  pur 
chase  money  according  to  the  terms  of  the  sale ;  and  no  sale  shall  be  valid 
until  reported  to,  and  confirmed  by  the  court ;  nor  shall  any  sale  be  con 
firmed  until  the  terms  shall  have  been  complied  with ;  and  the  court  may 
set  aside  such  sale  for  fraud,  want  of  proper  notice,  or  any  material  irregu 
larity,  or  where  it  shall  appear  that  the  receiver  was  the  purchaser  or  inter 
ested  in  the  purchase,  or  for  substantial  inadequacy  of  price :  Provided, 
however,  That  sales  of  personalty  may  be  reported  to,  and  confirmed  by  the 
judge  in  vacation. 

SEC.  9.  The  court  may,  in  its  discretion,  when  special  circumstances  exist 
which  temporarily  depress  the  value  of  the  property,  delay  the  order  of  sale, 
or  may  direct  the  receiver  to  examine  and  report  whether  it  would  be  expe 
dient  to  make  an  immediate  sale  of  such  property,  and  on  such  report,  or 
other  satisfactory  evidence,  showing  that  a  delay  in  the  sale  would  tend  to 
secure  a  fairer  price,  may  order  such  sale  to  be  delayed,  and  in  all  such  cases 
the  court  may,  in  the  case  of  real  estate,  or  of  a  plantation  and  slaves,  order 
the  receiver  to  lease  the  same  on  such  terms  as  the  court  may  prescribe. 

SEC.  10.  In  cases  where  an  alien  enemy  may  have  contracted  in  writing, 
before  the  twenty-first  day  of  May,  eighteen  hundred  and  sixty-one,  to  sell 
real  estate  to  a  citizen,  or  citizens,  of  this  Confederacy,  and  to  make  title 
upon  payment  of  the  purchase  money,  the  court,  in  decreeing  sequestration 
of  the  said  purchase  money,  or  the  residue  thereof  unpaid,  shall  further 
decree  that  the  receiver  of  the  district,  in  which  said  real  estate  is  situate, 
shall,  upon  payment  of  said  purchase  money,  or  the  residue  thereof,  as  afore 
said,  make  title  for  such  real  estate  to  the  purchaser  or  his  assignee. 

SEC.  11.  The  court  shall  audit  and  pass  on  the  accounts  of  the  receiver 
as  provided  in  this  act,  and  the  one  to  which  this  is  an  amendment ;  but  in 
lieu  of  the  compensation  and  allowances  herein  provided  for,  shall  allow 
such  compensation  as  shall  to  it  seem  reasonable  and  just,  following,  in  this 
respect,  so  far  as  may  be  applicable,  the  analogies  furnished  by  the  laws  of 
the  State  in  which  the  court  is  held,  concerning  compensation  to  executors, 
administrators,  and  trustees  ;  and  the  court  shall  further  allow  to  the  re 
ceiver  all  proper  expenses  attending  the  execution  of  his  office.  And  all 


NOTES    TO    THE   FORTY-THIRD   EDITION.  421 

fees  and  allowances  passed  by  the  court  in  favor  of  any  receiver  may  be 
retained  by  him  from  any  money  in  his  hands  ;  and  all  fees  and  allowances 
to  any  receiver  beyond  the  rate  of  five  thousand  dollars  per  annum,  except 
for  expenses  as  aforesaid,  shall  be  forthwith  paid  by  him  into  the  Confeder 
ate  Treasury,  to  the  use  of  the  Confederate  States,  and  shall  be  brought 
into,  and  stated  and  accounted  for  in  his  next  account  of  settlement  as  re 
ceiver. 

SEC.  12.  The  court  shall  appoint  an  attorney  for  each  section  in  which  the 
court  shall  be  holden,  and  in  which  no  attorney  of  the  Confederate  States 
resides,  whose  duties  it  shall  be  to  discharge,  within  said  section,  the  duties 
imposed  on  the  attorney  of  the  district  by  the  act  to  which  this  is  amenda 
tory  ;  and  the  compensation  of  such  attorney  so  appointed  shall  be  the  same 
for  business  by  him  done  as  is  now  provided,  by  ninth  section  of  said  act, 
for  the  district  attorney. 

SEC.  13.  The  receiver  shall,  in  all  cases,  take  the  possession  and  control 
of  the  money,  property  and  effects  of  alien  enemies,  and  of  such  choses  in 
action  as  shall  be  in  the  hands  of  any  agent  or  third  person,  except  when 
otherwise  provided  by  this  act,  and,  on  being  refused  possession,  shall  sue 
for  the  same,  and  such  possession  shall  not  be  withheld  on  any  pretext  of 
any  provisions  of  the  act  to  which  this  is  amendatory.  The  court  may  order 
a  delay  in  the  sale  of  property  when  it  shall  be  necessary  to  complete  or 
gather  a  growing  crop,  or  when  it  shall  be  otherwise  manifestly  to  the 
benefit  of  the  Confederate  States  to  delay  the  sale ;  but  in  all  such  cases 
the  possession,  control  and  management  shall  be  with  the  receiver,  or  under 
his  control  and  authority.  And  in  the  collection  of  debts  or  choses  in 
action,  no  State  stay  law  shall  govern,  but  the  same  shall  be  governed  by 
this  act,  and  the  one  to  which  this  is  an  amendment,  so  far  as  the  latter 
does  not  conflict  with  this  act. 

SEC.  14.  It  shall  be  the  duty  of  all  persons  owing  debts  to  alien  enemies, 
within  three  months  from  the  passage  of  this  act,  to  give  information  there 
of  to  the  receiver  of  the  district  in  which  he  or  they  reside,  and  in  case 
of  corporations  or  joint  stock  companies,  to  the  receiver  of  the  district  in 
which  the  principal  office  of  business  of  such  corporation  or  company  may 
be  ;  and  such  information  shall  be  in  writing  and  sworn  to  by  the  debtor, 
and  in  case  of  corporations  or  joint  stock  companies,  by  the  principal 
officer  of  such  corporation  or  company,  before  any  judge  of  a  court  of  rec 
ord,  justice  of  the  peace,  notary  public,  commissioner  of  the  court  or  receiver 
under  the  act  to  which  this  is  an  amendment,  and  shall  set  forth  the  name 
or  names  of  the  creditor  or  owner  of  such  debt,  the  amount  he  owes  or 
owed  on  the  thirtieth  day  of  August,  eighteen  hundred  and  sixty-one,  and 
whether  the  same  is,  or  has  been,  secured  by  mortgage  or  otherwise ;  and 
the  information  or  confession  so  made  shall  be  filed  by  the  receiver  in  the 
proper  court  of  the  Confederate  States,  and  such  court  shall,  on  such  infor 
mation,  proceed  to  decree  sequestration  and  payment  of  the  debt  or  debts  so 
confessed  ;  and  in  case  any  debtor  shall,  in  good  faith,  confess  his  indebted 
ness  as  aforesaid,  but  shall  be  unable  to  state  the  true  amount  of  his  indebt 
edness,  or  shall  be  in  doubt  whether  the  creditor  or  owner  of  the  debt  is  an 
alien  enemy,  the  court  shall  proceed  to  ascertain  the  character  of  the  creditor 
or  owner,  and  the  true  amount  of  such  indebtedness,  and  to  that  end  shall 
direct  such  proceedings  as  shall  be  adapted  to  the  nature  of  the  case,  and 
decree  according  to  the  facts  found.  And  in  all  proceedings  against  per 
sons  for  debts  due  by  them  to  alien  enemies,  the  debtor  shall  be  allowed  to 
make  any  defence  in  law  or  equity,  which  he  might  or  could  have  made  in  a 
suit  brought  against  him  by  the  creditor  to  whom  such  debt  was  due : 
Provided,  however,  That  no  execution  shall  issue  on  such  decree,  except  for 


422  NOTES    TO    THE    FORTY-THIRD    EDITION. 

the  interest  which  shall  accrue  on  the  same  at  the  end  of  each  year,  until 
twelve  months  after  peace  shall  be  declared  between  the  Confederate  States 
and  the  United  States,  or  until  otherwise  directed  by  law  :  And  provided, 
moreover,  That  execution  may  issue  for  the  costs  of  the  proceeding,  and 
the  sum  so  collected  for  costs  shall  be  deducted  from  the  principal  sum 
due. 

SEC.  15.  The  receivers  appointed  under  this  act,  or  the  act  to  which  this 
is  an  amendment,  shall  proceed  diligently  to  ascertain  and  collect  the  debts 
due  to  alien  enemies  by  persons  residing  in  the  districts  for  which  they  are 
severally  appointed,  and  shall,  on  the  discovery  of  any  such  debts,  and  after 
the  expiration  of  three  months  from  the  passage  of  this  act,  and  the  debtor 
shall  have  failed  to  give  information  of  such  debt,  proceed  to  institute  pro 
ceedings  to  sequestrate  the  same,  and  in  such  proceeding,  which  shall  be 
by  petition,  as  prescribed  by  said  act,  to  which  this  is  an  amendment,  and 
shall  be  to  sequestrate  the  debt,  as  well  as  to  ascertain  the  sum  due  by  the 
debtor,  such  debtor  shall  be  made  defendant  or  respondent,  as  the  case  may 
be,  and  the  process  to  bring  such  debtor  before  the  court,  or  to  compel  an 
answer,  shall  be  in  the  nature  of  the  writ  of  garnishment  as  prescribed  in 
said  act,  which  shall  be  served  on  such  debtor  ;  and  in  case  of  corporations 
and  joint  stock  companies,  on  some  member  or  officer  of  such  corporation 
or  company  ;  and  shall  require  the  defendant  to  answer  on  oath  whether  he 
is  indebted  to  any  alien  enemy,  or  was  so  indebted  on  the  thirtieth  day  of 
August,  eighteen  hundred  and  sixty-one,  in  what  sum,  and  whether  he  knows 
of  any  other  person  or  persons  so  indebted,  and,  on  the  disclosure  by  the 
defendant  of  such  indebtedness  by  other  persons,  like  proceedings  shall  be 
had  as  in  the  original  cause  ;  and  in  case  the  defendant  shall  suggest  in  his 
answer  that  the  debt  due  by  him  or  her  is  claimed  or  owned  by  any  person 
not  an  alien  enemy,  setting  forth  the  name  of  such  claimant,  his  place  of 
abode,  citation  shall  issue  to  such  claimant  to  appear  and  propound  his  claim 
on  oath,  at  the  succeeding  term  of  the  court ;  and  in  case  he  is  absent  from 
the  district  in  which  the  court  is  held,  or  cannot  be  found,  publication  shall 
be  made  for  the  space  of  one  month  in  some  newspaper  best  calculated  to 
apprise  such  claimant  to  appear  and  propound  his  claim  ;  and  if  such  claim 
ant  shall  fail  to  appear,  his  claim  shall  be  barred.  On  the  appearance  of  the 
claimant,  the  court  shall  direct  an  issue  to  try  the  same,  and  shall  award  the 
costs  against  the  claimant  if  the  claim  be  unfounded :  Provided,  That  the 
entire  answer  shall  be  considered  by  the  court. 

SEC.  16.  All  proceedings  now  pending  under  the  act  to  which  this  act  is 
an  amendment,  shall  be  made  to  conform  to  the  proceedings  directed  in  this 
act,  so  far  as  practicable,  and  the  judgments  rendered  therein  shall  be  given 
in  all  respects,  and  have  the  same  operation  and  effect,  as  judgments  ren 
dered  under  the  fourteenth  section  of  this  act. 

SEC.  17.  In  all  proceedings  against  debtors  who  fail  or  refuse  to  give 
information  of  their  indebtedness  within  the  time  prescribed  in  this  act, 
and  the  debtor  shall  be  brought  before  the  court  by  process,  the  costs  of  the 
proceeding  shall  be  adjudged  against  such  debtor,  in  case  he  is  found  to  be 
indebted  to  any  alien  enemy  ;  and  if  it  shall  appear  to  the  court,  on  the 
trial  of  any  cause  against  such  recusant  debtor,  that  he  has  wrongly  and 
wilfully  refused  or  failed  to  give  information  of  his  indebtedness,  or  to  state 
the  true  amount  thereof,  with  intent  to  hinder,  evade,  or  delay  the  execu 
tion  of  this  act,  or  the  act  to  which  this  is  an  amendment,  or  the  jury,  in 
any  cause  or  issue  tried  by  them,  shall  certify  that  such  debtor  has  wilfully 
failed  or  refused  to  give  information  of  his  indebtedness,  or  the  true  amouni 
thereof,  with  the  intent  aforesaid,  the  court  shall  award  execution  against 
such  debtor,  on  the  decree  or  judgment,  for  the  whole  amount  of  the  debt 


NOTES    TO    THE   FORTY-THIRD    EDITION.  423 

and  the  interest  due  thereon,  together  with  the  costs  ;  in  all  other  cases, 
however,  execution  shall  be  stayed  until  the  peace  aforesaid,  except  for  in 
terest  which  shall  accrue. 

SEC.  18.  In  cases  where  proceedings  shall  be  instituted  to  sequestrate 
judgments  or  decrees  already  rendered,  or  of  claims  or  debts  upon  which 
actions  or  suits  may  be  pending,  the  court  may,  after  the  decree  of  seques 
tration,  allow  the  receiver  to  prosecute  such  suit,  action,  decree,  or  judg 
ment,  in  the  name  of  the  Confederate  States  of  America ;  and  in  cases  of 
suits  or  actions  pending,  or  decrees  or  judgments  rendered  in  the  State 
courts,  where,  by  the  laws  of  such  State,  it  may  be  admissible,  such  receiver 
may  introduce  the  Confederate  States  of  America  in  the  proceedings,  as  a 
party  to  prosecute  such  suit  or  action,  or  enforce  such  decree  or  judgment ; 
but  in  such  cases  execution  shall  issue  for  costs  and  interest  only,  until  fur 
ther  provided  by  law,  or  twelve  months  after  the  conclusion  of  peace  as 
aforesaid. 

SEC.  19.  Attorneys,  agents  or  trustees  of  any  alien  enemy,  having  claims 
for  fees  or  commission  on  the  fund  or  assets  in  their  hands,  shall,  on  deliv 
ery  of  such  fund  or  assets  to  the  receiver,  make  out  their  accounts  for  such 
claims  or  commissions,  and  the  court  shall  consider  and  allow  the  same,  if 
just  and  reasonable,  to  be  paid  out  of  such  funds  or  assets  ;  and  where  coun 
sel  are  already  engaged  in  prosecuting  such  pending  suits  or  actions,  the 
receiver  shall  be  authorized  to  allow  them  to  continue  to  prosecute  such 
suits  or  actions  for  the  Confederate  States  of  America. 

SEC.  20.  The  rate  of  interest  to  be  paid  by  debtors  shall  be  regulated  by 
the  contract,  if  by  the  terms  thereof  the  rate  of  interest  shall  be  fixed,  and 
if  no  interest  shall  be  fixed  by  the  contract,  then  the  rate  shall  be  according 
to  the  law  of  the  place  where  the  debt  is  to  be  paid  or  the  contract  per 
formed  ;  and  the  judgment  or  decree  shall  bear  the  same  rate  of  interest 
fixed  by  law  or  the  contract,  and  the  same  shall  be  punctually  paid  at  the 
end  of  each  year,  or  execution  shall  issue  for  the  same. 

SEC.  21.  In  no  case  shall  the  judgment  or  decree  be  a  lien  on  the  prop 
erty  of  the  debtor ;  but  where  the  court  shall  award  execution  under  this 
act,  the  property  of  the  debtor  shall  be  bound,  from  the  delivery  of  the  writ. 

SEC.  22.  The  court,  or  judge  in  vacation,  shall  have  power  to  award  exe 
cution  on  any  judgment  or  decree,  in  addition  to  the  cases  of  recusant  debt 
ors,  where  the  receiver  shall  make  oath  that  the  debtor  is  fraudulently  con 
cealing  or  disposing  of  his  effects,  with  intent  to  evade  the  judgment,  or  is 
about  to  remove  his  effects  beyond  the  jurisdiction  of  the  court,  but  such 
execution  shall  be  discharged  on  the  defendant's  giving  security,  to  the  sat 
isfaction  of  the  court,  for  the  performance  or  payment  of  the  decree. 

SEC.  23.  In  proceedings  under  this  act,  and  the  act  of  which  it  is  amend 
atory,  upon  affidavit  being  made  by  the  attorney  representing  the  Confed 
erate  States,  or  the  proper  receiver,  that  the  name  of  an  alien  enemy  is 
wholly  or  partly  unknown  to  him,  or  that  the  names  of  the  members  of  a 
partnership  of  alien  enemies  are  unknown  to  him,  the  process  and  proceed 
ings  may  be  against  such  partnership  by  the  firm  name  thereof,  stated  in 
such  affidavit,  or  against  such  alien  enemy,  whose  name  is  wholly  or  partly 
unknown,  by  such  name  or  proper  description  as  may  be  known  and  set 
forth  in  such  affidavit :  Provided,  That  the  court  may,  at  any  time,  on  mo 
tion,  cause  the  full  and  proper  name  to  be  inserted  in  the  record,  and  used 
in  the  proceedings,  when  the  same  become  known  to  the  court. 

SEC.  24.  Receivers  shall  have  authority  to  administer  oaths  touching 
any  matter  incident  to  proceedings  under  this  act. 

SEC.  25.  The  sixteenth  section  of  the  act  to  which  this  is  amendatory,  is 
hereby  repealed. 


424  NOTES    TO    THE    FORTY-THIRD    EDITION. 


SEC.  26.  All  debts  due  to  any  alien  enemy  may  be  paid  in  the  bonds  and 
treasury  notes  of  the  Confederate  States,  and  the  same  shall  be  received  in 
payment  for  all  property  sold  under  this  act. 

SEC.  27.  The  fees  of  all  clerks  and  marshals  shall  be  the  same  for  ser 
vices  under  this  act,  and  the  act  to  which  this  is  an  amendment,  as  are 
allowed  for  similar  services  in  the  courts  of  the  Confederate  States,  and  shall 
be  a  charge  upon  the  general  fund  derived  from  confiscations,  and  shall  be 
paid  on  the  order  of  the  court. 

SEC.  28.  The  commissioners  authorized  by  the  fourteenth  section  of  the 
act  to  which  this  is  an  amendment,  shall  appoint  a  clerk  with  a  salary  of 
fifteen  hundred  dollars,  to  be  paid  out  of  the  treasury  of  the  Confederate 
States  ;  but  such  salary,  as  well  as  the  salary  of  said  commissioners,  shall 
be  charged  to  the  confiscation  fund  and  be  deducted  therefrom  ;  and  said 
commissioners  shall  moreover  have  power  to  appoint  commissioners  to  take 
the  examination  of  witnesses  touching  the  claims  which  may  be  propounded 
before  them,  or  may  summon  witnesses  before  them  to  be  examined  orally  ; 
said  commissioners,  and  the  commissioners  appointed  by  them  to  examine 
witnesses  as  aforesaid,  shall  have  power  to  administer  oaths  to  the  witnesses 
and  to  issue  subpoenas,  and  witnesses  failing  to  appear  shall  be  subject  to 
like  penalties  and  process  as  may  be  prescribed  in  the  courts  of  the  Confed 
erate  States  against  defaulting  witnesses  :  Provided,  however,  That  the  costs 
of  all  proceedings  to  take  testimony  shall  be  paid  by  the  claimant,  except 
in  cases  where  the  Attorney  General  'shall  apply  for  leave  to  take  testimony, 
and  the  fees  of  witnesses  and  commissioners  shall  be  the  same  as  are  al 
lowed  in  the  courts  of  the  Confederate  States  in  like  cases. 

SEC.  29.  So  much  of  the  act  to  which  this  is  an  amendment  as  requires 
the  receivers  to  settle  separately  the  estate  of  each  alien  enemy,  is  repealed, 
and  hereafter  each  settlement  shall  embrace  all  the  matters  ready  for  settle 
ment;  but  the  items  of  the  account  shall  be  so  specific  as  to  show  the 
sources  from  which  each  is  derived. 

SEC.  30.  Where  any  judgment  has  been  entered  up  in  any  of  the  courts 
of  the  Confederate  States,  under  the  act  to  which  this  is  an  amendment,  in 
consistent  with  the  provisions  and  spirit  of  this  act,  the  same,  on  motion, 
shall  be  set  aside  or  amended  in  accordance  with  the  terms  and  provisions 
of  this  act. 

SEC.  31.  The  provisions  of  the  act  to  which  this  act  is  an  amendment,  so 
far  as  the  same  may  conflict  with  this  act,  are  hereby  repealed. 

Approved  February  15,  1862. 

By  examination  of  the  foregoing  acts,  it  is  seen  that  the  Confederate  Con 
gress  passed  laws  under  a  Constitution  which  was,  word  for  word,  the  same 
as  ours,  so  far  as  relates  to  the  restrictions  upon  its  power  of  passing  ex 
post  facto  laws,  or  bills  of  attainder,  and  to  its  power  of  declaring  the 
punishment  of  treason,  with  the  proviso  that  "  no  attainder  of  treason  shall 
work  corruption  of  blood,  or  forfeiture  except  during  the  life  of  the  person 
attainted."  But  in  none  of  these  acts  in  which  the  lands  of  citizens  of  the 
Confederate  States  were  made  liable  to  sequestration,  was  the  forfeiture  there 
of  confined  to  the  life  estates  of  the  owners.  The  Confederates  found 
neither  in  the  laws  of  nations  nor  in  the  Constitution,  as  they  under 
stood  them,  anything  to  prevent  their  enforcing  against  all  who  were  resi 
dents  in  the  rebel  States,  or  were  within  their  power,  but  did  not  acknowl 
edge  allegiance  to  their  government,  the  same  belligerent  rights  over  their 


NOTES    TO    THE   FORTY-THIRD    EDITION.  425 

persons  and  th  eir  property  as  though  they  had  been,  in  fact,  alien  enemies. 
They  passed  acts  providing  for  the  seizure  and  imprisonment  of  their  per 
sons  ;  and  the  absolute  confiscation  of  all  their  property,  personal  and  real ; 
and  for  depriving  them  of  political  and  civil  rights,  declaring  them  alien 
enemies,  although  born  on  their  soil,  and  natives  of  the  Confederate  States. 
They  allowed  their  own  citizens,  faithful  to  the  Confederacy,  when  next  of 
kin,  to  inherit  and  possess  all  the  property  of  their  relatives,  who  refused 
allegiance  to  the  rebels,  as  if  they  had  been  dead ;  and  they  made  it  a  crime 
not  to  disclose  and  give  up  to  the  government  all  property  of  persons  un 
friendly  to  the  Confederacy. 

The  penalties  imposed  by  the  statutes  of  the  provisional  government  of 
the  Confederate  States,  upon  all  persons,  including  non-combatants,  who 
withheld  allegiance  from  the  rebels,  were  far  more  sweeping  and  severe  than 
the  acts  of  Congress  against  traitors.  Yet  it  is  not  surprising  to  find  that 
rebels,  who  justified  the  Confederates  in  passing  laws  depriving  citizens  of. 
rebel  States  of  all  their  civil  and  political  rights,  of  their  property,  and  their 
liberty,  under  certain  articles  of  this  Constitution,  are  now  quite  ready  to 
deny  to  the  United  States  the  right,  under  the  same  articles  of  the  same 
Constitution,  to  pass  laws  far  less  severe  in  punishment  of  far  greater 
crimes. 

CONSTITUTIONALITY  OF  CONFISCATION  ACT.  (Page  123.) 
On  page  123,  the  opinion  is  expressed  that  the  confiscation  act  of  1862  is 
not  within  the  prohibition  of  the  Constitution.  On  this  point  it  is  pre 
sumed  that  no  question  will  be  hereafter  raised.  Chief  Justice  Chase,  dur 
ing  the  term  of  the  Circuit  Court  at  Richmond,  held  in  1868,  delivered  an 
important  opinion  in  a  case  of  confiscation  of  real  estate  under  the  act  of 
July  17,  1862.  He  said  that  several  cases  arising  under  this  act  have  been 
considered  by  the  Supreme  Court,  and  as  the  point  was  not  raised,  it  was  a 
fair  conclusion  that  neither  at  the  bar  nor  upon  the  bench  was  the  constitu 
tionality  of  the  act  doubted. 

[No.  5.     See  pages  53,  292,  293,  295.] 
BELLIGERENTS. 

"  Whether  Belligerents  should  be  allowed  Civil  Rights  under  the  Constitution, 

depends  upon  the  Policy  of  the  Government" 

No  opinion  stated  in  this  book  was  more  earnestly  questioned  by  leading 
statesmen  and  jurists  at  the  time  of  its  first  publication,  in  1862,  than  the 
one  above  quoted.  Though  the  act  of  July  13,  1861,  had  been  previously 
passed,  which  recognized  a  state  of  war,  and  declared  non-intercourse  with 
the  insurrectionary  districts,  and  though  the  President  had  issued  his  proc 
lamation  of  August  16,  1861,  in  pursuance  of  this  act,  yet  this  view  of  our 
constitutional  rights  against  the  inhabitants  of  the  rebel  States,  thus  recog- 

54 


426  NOTES    TO    THE   FORTY-THIRD    EDITION. 

nized  as  belligerents  engaged  in  civil  war,  was,  at  that  time,  condemned  by 
certain  writers  as  "  erroneous,  dangerous,  and  revolutionary."  Nevertheless, 
this  interpretation  of  the  war  powers  of  the  Union  has  finally  been  recog 
nized  and  established.  It  has  received  the  sanction  of  the  several  depart 
ments  of  the  government,  executive,  legislative,  and  judicial.  It  is  the  basis 
on  which  the  President  has  issued  several  proclamations,  and  upon  which 
Congress  has  passed  several  acts  in  relation  to  the  persons  and  property  of 
rebels,  depriving  them  of  the  rights  enjoyed  by  citizens  of  the  United  States 
under  the  Constitution,  and  has  also  founded  the  system  of  laws  called  the 
Reconstruction  Acts,  for  restoring  equal  rights  to  our  public  enemies  upon 
terms  and  conditions  therein  prescribed. 

In  the  Courts  of  the  United  States,  prior  to  the  civil  war,  it  had  been 
held  that  political  questions  could  be  decided  only  by  the  political  depart 
ments  of  our  government  and  that  the  courts  were  bound  to  recognize  and 
follow  these  decisions.  (See  pp.  294,  295,  and  authorities  there  cited.) 
And  it  had  been  also  held  that  questions  relating  to  the  status  of  foreign 
countries,  or  to  the  recognition  of  State  governments  in  the  Union,  under 
the  clause  of  the  Constitution  which  guarantees  republican  forms  of  gov 
ernment  to  the  States,  and  that  certain  other  questions  of  a  national  or 
international  character,  were  of  a  political  nature,  and  were  therefore  deter- 
minable  only  by  the  political  departments  of  our  government.  No  case  had 
then  arisen  which  required  the  courts  to  decide  whether  the  government 
had  the  right,  under  any  circumstances,  to  deprive  citizens  of  the  United 
States  of  any  of  the  civil  or  political  rights  secured  to  them  by  the  Constitu 
tion,  except  as  a  punishment  for  crimes,  by  law ;  or,  in  other  words,  to 
declare  and  determine  that  the  political  status  of  the  inhabitants  of  any 
portion  of  the  Union  should  be  different  from  that  which  they  had  held  as 
citizens  in  time  of  peace,  under  the  Constitution  and  laws. 

The  constitutional  power  claimed  in  this  essay  for  the  government  of 
determining  the  political  status  of  the  enemy,  and  of  giving  or  ivithlioldiny 
civil  and  political  rights,  according  to  the  decisions  of  the  political  depart 
ments,  received  its  earliest  authoritative  sanction  in  the  opinions  of  the 
judges  of  the  Supreme  Court  of  the  United  States  in  the  prize  cases  decided 
in  1863,  within  a  year  after  the  first  edition  of  this  essay  was  published. 
(See  p.  141.)  Since  that  date,  several  decisions  of  the  same  court  have 
confirmed  the  doctrines  of  these  cases.  In  addition  to  the  authorities  cited 
in  notes  to  pp.  252,  293,  295,  the  following  cases,  which,  except  vthe  first  two, 
have  been  recently  decided,  may  be  added,  as  illustrative  of  the  propositions 
assumed  as  the  basis  of  the  conclusion  stated  at  the  commencement  of 
this  note :  — 

Cherokee  Nation  v.  State  of  Georgia,  5  Peters,  1. 

State  of  Rhode  Island  v.  State  of  Massachusetts,  12  Peters,  657.  (See 
this  case,  as  re-stated  by  Nelson,  J.,  in  the  case  of  Georgia  v.  Stanton,  6 
Wallace,  73.) 


NOTES    TO  THE   FORTY-THIRD    EDITION.  427 

The  Venice,  2  Wallace,  274.     (1864-5.) 
Mrs.  Alexander  Cotton,  2  Wallace,  417.     (1864-5.) 
State  of  Mississippi  v.  Johnson,  4  Wallace,  497.     (1866-7.) 
The  Peterlioff,  5  Wallace,  60.     (1866-7.) 
The  William  Bagaley,  ib.,  402-409.     (1866.) 
Mauran  v.  Insurance  Co.,  6  Wallace,  14.     (1867-8.) 
State  of  Georgia  v.  Stanton,  6  Wallace,  71.     (1868-9.)* 
The  government  of  the  Confederate  States  assumed  and  acted  upon  the 
same  view  of  the  Constitution  as  that  above  stated.     Their  Congress  de 
termined,  by  statutes,  the  political  status  of  all  persons  who  refused  to 
render  allegiance  to  the  Confederacy,  and  provided  means  for  depriving  all 
their  enemies  of  property,  liberty,  or  life.     (See  Notes  pp.  409-424.)f 

[No.  6.     See  page  57.] 

MILITARY  AND   PROVISIONAL   GOVERNMENTS.     RECON 
STRUCTION. 

When  this  work  was  first  published  (in  1862),  it  was  generally  admitted  by 
loyal  citizens  that  the  administration  had  a  right  to  suppress  rebellion,  by  em 
ploying  military  and  naval  forces,  so  far  as  they  might  be  necessary  to  break 
up  and  disperse  the  armies  of  insurgents.  It  was  also  then  supposed  by  some 
persons  that  the  President,  as  commander-in-chief,  might  hold  such  dis 
tricts  of  enemy  territory  as  should  come  into  our  military  possession,  under 
the  command  of  his  army  officers,  jlagrante  bello.  Whether  he  had  any 
lawful  authority,  in  those  districts,  over  property  or  persons  not  engaged  in 
carrying  on  hostilities  against  us,  and  not  committing  crimes  punishable  by 
martial  law,  was  a  question  which  had  not  then  been  solved.  What,  under 
this  new  condition  of  affairs,  was  the  extent,  and  what  were  the  limitations 
of  the  military  power  of  the  President  or  of  his  officers ;  how  far  he  or  they 
were  bound  by  the  local  laws  of  the  rebel  States  ;  whether  those  laws  were 
still  obligatory  upon  the  inhabitants  .thereof;  what  were  the  legal  rights  of 
peaceable  rebels,  of  neutrals,  or  of  friends  of  the  Union  living  there  ;  what 
protection  could  be  lawfully  given  to  persons  or  property,  without  swerving 
from  the  purposes  for  which  our  defensive  war  was  declared  to  have  been 
commenced  and  carried  on ;  whether  all  the  laws  of  the  United  States,  as, 
for  instance,  those  regarding  the  return  of  fugitive  slaves,  were  still  obliga 
tory  upon  our  soldiers,  as  in  time  of  peace  ;  and  whether  the  citizens  of  the 
rebellious  States  were  sttil  entitled  to  all  their  former  rights  under  the  Con 
stitution,  —  were  questions  which  embarrassed  and  disheartened  our  states 
men  and  jurists  no  less  than  our  commanders  and  soldiers  in  the  service. 
Whether  Congress  had  the  right  to  erect  military  or  provisional  governments 

*  For  the  above-cited  cases,  see  Appendix. 

t  See  Index— Military  Government,  Capture,  Confiscation. 


428  NOTES    TO    THE   FORTY-THIRD    EDITION. 

over  our  conquered  enemy,  was  a  question  which,  at  that  early  period  of 
the  war,  had  not  become  of  sufficient  practical  importance  to  attract  the 
attention  of  our  public  men.  In  the  course  of  subsequent  events  the  main 
tenance  of  that  right  became  essential  to  the  life  of  the  nation,  and  is  now 
the  basis  of  the  reconstructed  Union.  It  was  with  a  view  of  answering  these 
and  similar  questions,  and  at  the  same  time  of  vindicating  the  right  of  the 
country  to  use  among  its  other  war  powers  that  of  controlling  by  military 
governments  those  whom  it  should  conquer,  that  this  essay  was  written,  in 
the  firm  belief  that  the  time  would  come  when  our  army  and  navy  would 
regain  possession  of  every  portion  of  the  States,  and  would  then  be  able  to 
govern  their  inhabitants  by  martial  law.  In  these  pages  the  constitutional 
power  was  claimed  as  rightfully  belonging  to  the  government  to  treat  the 
inhabitants  of  States  declared  in  rebellion,  without  exception  or  distinction, 
as  belligerent  public  enemies ;  to  liberate  their  slaves  ;  to  capture  and  con 
fiscate  their  property ;  to  hold  them  as  a  conquered  people ;  to  erect  and 
maintain  military  and  provisional  governments  over  them  during  the  pleas 
ure  of  the  conqueror.  An  exposition  and  application  of  these,  with  other 
war  powers  of  the  United  States,  were  believed  by  the  author  to  afford  a 
solution  of  all  questions  relating  to  the  civil  and  political  rights  of  public 
enemies  in  time  of  war,  and  to  the  authority  of  the  government  over  them. 

It  is  doubtless  true  that  the  President,  Congress,  and  the  people  of  the 
loyal  States  were  not  at  that  time  prepared  to  approve  of  these  views.  They 
advanced  by  slow  and  cautious  steps  to  recognize  and  apply  the  laws  of  war. 
But  as  various  emergencies  arose,  the  necessity  of  acting  upon  them  became 
manifest.  Without  the  untrammelled  use  of  all  the  means  we  possessed, 
we  could  not  have  conquered  the  rebels.  If  we  had  succeeded  in  dispersing 
their  armies,  we  could  never  have  reduced  them  to  bona  fide  submission  to 
the  government,  if,  on  laying  down  their  arms,  and  without  obtaining  the 
assent  of  the  loyal  people  of  the  United  States,  they  had  been  held  to  be 
entitled,  under  the  Constitution,  to  resume  at  their  own  will  and  pleasure, 
all  their  former  civil  and  political  rights  and  privileges  in  and  relative  to 
the  Union  ;  while,  in  fact,  the  power  even  of  local  governments  of  the  rebel 
districts,  formerly  possessed  by  them,  had  passed  out  of  their  hands  by  civil 
war,  and  was  vested  in  the  United  States.  This  power  was  exercised,  while 
hostilities  were  flagrant,  by  the  commander --in-chief \  or  his  subordinate 
officers,  whom  he  appointed  as  military  governors  of  the  several  districts 
into  which  the  rebel  territory  was  divided.  These  military  governors  were 
succeeded  by  others,  who  were  appointed  by  the  President,  under  acts  of 
Congress,  which  provided  for  new  temporary  governments.  The  first  of 
these  acts  referred  to  in  the  note  to  page  65  was  approved  March  3,  1865, 
and  is  as  follows.  (See  Stat.  1865,  Chap.  90,  p.  507.) 

FREEDMEN'S  BUREAU  ACT.* 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  there  is  hereby  established 

*  See  letter  to  Mr.  Eliot,  relating-  to  this  act,  p.  404. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  429 

in  the  War  Department,  to  continue  during  the  present  war  of  rebellion, 
and  for  one  year  thereafter,  a  bureau  of  refugees,  freedmen,  and  abandoned 
lands,  to  which  shall  be  committed,  as  hereinafter  provided,  the  supervision 
and  management  of  all  abandoned  lands,  and  the  control  of  all  subjects  re 
lating  to  refugees  and  freedmen  from  rebel  States,  or  from  any  district  of 
country  within  the  territory  embraced  in  the  operations  of  the  army,  under 
such  rules  and  regulations 'as  may  be  prescribed  by  the  head  of  the  bureau, 
and  approved  by  the  President.  The  said  bureau  shall  be  under  the  man- 
agement  and  control  of  a  commissioner  to  be  appointed  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  whose  compensation  shall 
be  three  thousand  dollars  per  annum,  and  such  number  of  clerks  as  may  be 
assigned  to  him  by  the  Secretary  of  War,  not  exceeding  one  chief  clerk,  two 
of  the  fourth  class,  two  of  the  third  class,  and  five  of  the  first  class.  And 
the  commissioner  and  all  persons  appointed  under  this  act,  shall,  before  en 
tering  upon  their  duties,  take  the  oath  of  office  prescribed  in  an  act  entitled 
"  An  Act  to  prescribe  an  oath  of  office,  and  for  other  purposes,"  approved 
July  second,  eighteen  hundred  and  sixty-two,  and  the  commissioner  and  the 
chief  clerk  shall,  before  entering  upon  their  duties,  give  bonds  to  the  Treas 
urer  of  the  United  States,  the  former  in  the  sum  of  fifty  thousand  dollars, 
and  the  latter  in  the  sum  of  ten  thousand  dollars,  conditioned  for  the  faith 
ful  discharge  of  their  duties  respectively,  with  securities  to  be  approved  as 
sufficient  by  the  Attorney  General,  which  bonds  shall  be  filed  in  the  office 
of  the  first  comptroller  of  the  treasury,  to  be  by  him  put  in  suit  for  the  ben 
efit  of  any  injured  party  upon  any  breach  of  the  conditions  thereof. 

SEC.  2.  And  be  it  further  enacted,  That  the  Secretary  of  War  may  direct 
such  issues  of  provisions,  clothing,  and  fuel,  as  he  may  deem  needfuHor  the 
immediate  and  temporary  shelter  and  supply  of  destitute  and  suffering  ref 
ugees  and  freedmen  and  their  wives  and  children,  under  such  rules  and  regu 
lations  as  he  may  direct. 

SEC.  3.  And  be  it  further  enacted,  That  the  President  may,  by  and  with 
the  advice  and  consent  of  the  Senate,  appoint  an  assistant  commissioner  for 
each  of  the  States  declared  to  be  in  insurrection,  not  exceeding  ten  in  num 
ber,  who  shall,  under  the  direction  of  the  commissioner,  aid  in  the  execution 
of  the  provisions  of  this  act ;  and  he  shall  give  a  bond  to  the  Treasurer  of 
the  United  States,  in  the  sum  of  twenty  thousand  dollars,  in  the  form  and 
manner  prescribed  in  the  first  section  of  this  act.  Each  of  said  commissioners 
shall  receive  an  annual  salary  of  two  thousand  five  hundred  dollars  in  full 
compensation  for  all  his  services.  And  any  military  officer  may  be  detailed 
and  assigned  to  duty  under  this  act  without  increase  of  pay  or  allowances. 
The  commissioner  shall,  before  the  commencement  of  each  regular  session 
of  Congress,  make  full  report  of  his  proceedings  with  exhibits  of  the  state 
of  his  accounts  to  the  President,  who  shall  communicate  the  same  to  Con 
gress,  and  shall  also  make  special  reports  whenever  required  to  do  so  by  the 
President  or  either  House  of  Congress  ;  and  the  assistant  commissioners  shall 
make  quarterly  reports  of  their  proceedings  to  the  commissioner,  and  also 
such  other  special  reports  as  from  time  to  time  may  be  required. 

SEC.  4.  And  be  it  further  enacted,  That  the  commissioner,  under  the 
direction  of  the  President,  shall  have  authority  to  set  apart,  for  the  use  of 
loyal  refugees  and  freedmen,  such  tracts  of  land  within  the  insurrectionary 
States  as  shall  have  been  abandoned,  or  to  which  the  United  States  shall 
have  acquired  title  by  confiscation  or  sale,  or  otherwise;  and  to  every ^male 
citizen,  whether  refugee  or  freedman,  as  aforesaid,  there  shall  be^  assigned 
not  more  than  forty  acres  of  such  land,  and  the  person  to  whom  it  was  so 
assigned  shall  be  protected  in  the  use  and  enjoyment  of  the  land  for  the 
term  of  three  years  at  an  annual  rent  not  exceeding  six  per  centum  upon  the 


430  NOTES    TO    THE   FORTY-THIRD    EDITION. 

value  of  such  land,  as  it  was  appraised  by  the  State  authorities  in  the  year 
eighteen  hundred  and  sixty,  for  the  purpose  of  taxation ;  and  in  case  no 
such  appraisal  can  be  found,  then  the  rental  shall  be  based  upon  the  esti 
mated  value  of  the  land  in  said  year,  to  be  ascertained  in  such  manner  as 
the  commissioner  may  by  regulation  prescribe.  At  the  end  of  said  term,  or 
at  any  time  during  said  term,  the  occupants  of  any  parcels  so  assigned  may 
purchase  the  land,  and  receive  such  title  thereto  as  the  United  States  can 
convey,  upon  paying  therefor  the  value  of  the  land,  as  ascertained  and  fixed 
for  the  purpose  of  determining  the  annual  rent  aforesaid. 

SEC.  5.  And  be  it  further  enacted,  That  all  acts  and  parts  of  acts  incon 
sistent  with  the  provisions  of  this  act,  are  hereby  repealed. 

Approved,  March  3,  1865. 

The  operation  of  this  law  was  extended  by  the  following  act  of  July 
16,  1866.  (Stat.  90,  p.  173.) 

CHAP.  CC.  —  An  Act  to  continue  in  force  and  to  amend  "An  Act  to  estab 
lish  a  Bureau  for  the  Belief  of  Freedmen  and  Refugees,"  and  for  other 
Purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  act  to  establish  a  bureau 
for  the  relief  of  freedmen  and  refugees,  approved  March  third,  eighteen  hun 
dred  and  sixty-five,  shall  continue  in  force  for  the  term  of  two  years  from 
and  after  the  passage  of  this  act. 

SEC.  2.  And  be  it  further  enacted,  That  the  supervision  and  care  of  said 
bureau  shall  extend  to  all  loyal  refugees  and  freedmen,  so  far  as  the  same 
shall  be  necessary  to  enable  them  as  speedily  as  practicable  to  become  self- 
supporting  citizens  of  the  United  States,  and  to  aid  them  in  making  the 
freedom  conferred  by  proclamation  of  the  commander-in-chief,  by  emancipa 
tion  under  the  laws  of  States,  and  by  constitutional  amendment,  available  to 
them  and  beneficial  to  the  republic. 

SEC.  3.  And  be  it  further  enacted,  That  the  President  shall,  by  and  with 
the  advice  and  consent  of  the  Senate,  appoint  two  assistant  commissioners, 
in  addition  to  those  authorized  by  the  act  to  which  this  is  an  amendment, 
who  shall  give  like  bonds  and  receive  the  same  annual  salaries  provided  in 
said  act,  and  each  of  the  assistant  commissioners  of  the  bureau  shall  have 
charge  of  one  district  containing  such  refugees  or  freedmen,  to  be  assigned 
him  by  the  commissioner  with  the  approval  of  the  President.  And  the  com 
missioner  shall,  under  the  direction  of  the  President,  and  so  far  as  the  same 
shall  Jbe,  in  his  judgment,  necessary  for  the  efficient  and  economical  admin 
istration  of  the  affairs  of  the  bureau,  appoint  such  agents,  clerks,  and 
assistants  as  may  be  required  for  the  proper  conduct  of  the  bureau.  Mili 
tary  officers  or  enlisted  men  may  be  detailed  for  service  and  assigned  to 
duty  under  this  act;  and  the  President  may,  if  in  his  judgment  safe  and 
judicious  so  to  do,  detail  from  the  army  all' the  officers  and  agents  of  this 
bureau  ;  but  no  officer  so  assigned  shalfhave  increase  of  pay  or  allowances. 
Each  agent  or  clerk,  not  heretofore  authorized  by  law,  not  being  a  military 
officer,  shall  have  an  annual  salary  of  not  less  than  five  hundred  dollars,  nor 
more  than  twelve  hundred  dollars,  according  to  the  service  required  of  him. 
And  it  shall  be  the  duty  of  the  commissioner,  when  it  can  be  done  consist 
ently  with  public  interest,  to  appoint,  as  assistant  commissioners,  agents, 
and  clerks,  such  men  as  have  proved  their  loyalty  by  faithful  service  in  the 
armies  of  the  Union  during  the  rebellion.  And  all  persons  appointed  to 
service  under  this  act  and  the  act  to  which  this  is  an  amendment,  shall  be 


NOTES    TO    THE   FORTY-THIRD    EDITION.  431 

so  far  deemed  in  the  military  service  of  the  United  States  as  to  be  under  the 
military  jurisdiction,  and  entitled  to  the  military  protection,  of  the  govern 
ment  while  in  discharge  of  the  duties  of  their  office. 

SEC.  4.  And  be  it  further  enacted,  That  officers  of  the  veteran  reserve 
corps  or  of  the  volunteer  service,  now  on  duty  in  the  Freedmen's  Bureau 
as  assistant  commissioners,  agents,  medical  officers,  or  in  other  capacities, 
whose  regiments  or  corps  have  been  or  may  hereafter  be  mustered  out  of 
service,  may  be  retained  upon  such  duty  as  officers  of  said  bureau,  with  the 
same  'compensation  as  is  now  provided  by  law  for  their  respective  grades  ; 
and  the  Secretary  of  War  shall  have  power  to  fill  vacancies  until  other 
officers  can  be  detailed  in  their  places  without  detriment  to  the  public 
service. 

SEC.  5.  And  be  it  further  enacted,  That  the  second  section  of  the  act 
to  which  this  is  an  amendment  shall  be  deemed  to  authorize  the  Secretary 
of  War  to  issue  such  medical  stores  or  other  supplies  and  transportation, 
and  afford  such  medical  or  other  aid  as  here  may  be  needful  for  the  purposes 
named  in  said  section  :  Provided,  That  no  person  shall  be  deemed  "  desti 
tute,"  "  suffering,"  or  "  dependent  upon  the  government  for  support,"  within 
the  meaning  of  this  act,  who  is  able  to  find  employment,  and  could,  by  proper 
industry  or  exertion,  avoid  such  destitution,  suffering,  or  dependence. 

SEC.  6.  Whereas,  by  the  provisions  of  an  act  approved  February  sixth, 
eighteen  hundred  and  sixty-three,  entitled  "  An  Act  to  amend  an  act  en 
titled  '  An  Act  for  the  collection  of  direct  taxes  in  insurrectionary  districts 
within  the  United  States,  ^nd  for  other  purposes,'  approved  June  seventh, 
eighteen  hundred  and  sixty-two,"  certain  lands  in  the  parishes  of  St.  Helena 
and  Saint  Luke,  South  Carolina,  were  bid  in  by  the  United  States  at  public 
tax  sales,  and  by  the  limitation  of  said  act  the  time  of  redemption  of  said 
lands  has  expired  ;  and  whereas,  in  accordance  with  instructions  issued  by 
President  Lincoln  on  the  sixteenth  day  of  September,  eighteen  hundred  and 
sixty-three,  to  the  United  'States  direct  tax  commissioners  for  South  Caro 
lina,"  certain  lands  bid  in  by  the  United  States  in  the  parish  of  Saint  Helena, 
in  said  State,  were  in  part  sold  by  the  said  tax  commissioners  to  "  heads  of 
families  of  the  African  race,"  in  parcels  of  not  more  than  twenty  acres  to 
each  purchaser ;  and  whereas,  under  said  instructions,  the  said  tax  com 
missioners  did  also  set  apart  as  "  school  farms  "  certain  parcels  of  land  in 
said  parish,  numbered  on  their  plats  from  one  to  thirty-three,  inclusive, 
making  an  aggregate  of  six  thousand  acres,  more  or  less  :  Therefore,  be  it 
further  enacted,  That  the  sales  made  to  "  heads  of  families  of  the  African 
race,"  under  the  instructions  of  President  Lincoln  to  the  United  States 
direct  tax  commissioners  for  South  Carolina,  of  date  of  September  sixteenth, 
eighteen  hundred  and  sixty-three,  are  hereby  confirmed  and  established ; 
and  all  leases  which  have  been  made  to  such  "  heads  of  families  "  by  said 
direct  tax  commissioners,  shall  be  changed  into  certificates  of  sale  in  all 
cases  wherein  the  lease  provides  for  such  substitution  ;  and  all  the  lands 
now  remaining  unsold,  which  come  within  the  same  designation,  being  eight 
thousand  acres,  more  or  less,  shall  be  disposed  of  according  to  said  in 
structions. 

SEC.  7.  And  be  it  further  enacted,  That  all  other  lands  bid  in  by  the 
United  States  at  tax  sales,  being  thirty-eight  thousand  acres,  more  or  less, 
and  IIOAV  in  the  hands  of  the  said  tax  commissioners  as  the  property  of  the 
United  States,  in  the  parishes  of  Saint  Helena  and  Saint  Luke,  excepting 
the  "  school  farms,"  as  specified  in  the  preceding  section,  and  so  much  as 
may  be  necessary  for  military  and  naval  purposes  at  Hilton  Head,^Bay 
Point,  and  Land's  End,  and  excepting  also  the  city  of  Port  Royal,  on  Saint 
Helena  Island,  and  the  town  of  Beaufort,  shall  be  disposed  of  in  parcels  of 


432  NOTES    TO    THE    FORTY-THIRD    EDITION. 

twenty  acres,  at  one  dollar  and  fifty  cents  per  acre,  to  such  persons  and  to 
such  only  as  have  acquired  and  are  now  occupying  lands  under  and  agreea 
bly  to  the  provisions  of  General  Sherman's  special  field  order,  dated  at 
Savannah,  Georgia,  January  sixteenth,  eighteen  hundred  and  sixty-five  ; 
and  the  remaining  lands,  if  any,  shall  be  disposed  of  in  like  manner  to  such 
persons  as  had  acquired  lands  agreeably  to  the  said  order  of  General  Sher 
man,  but  who  have  been  dispossessed  by  the  restoration  of  the  same  to 
former  owners  :  Provided,  That  the  lands  sold  in  compliance  with  the  pro 
visions  of  this  and  the  preceding  section  shall  not  be  alienated  by  their 
purchasers  within  six  years  from  and  after  the  passage  of  this  act. 

SEC.  8.  And  be  it  'further  enacted,  That  the  "  school  farms "  in  the 
parish  of  Saint  Helena,  South  Carolina,  shall  be  sold,  subject  to  any  leases 
of  the  same,  by  the  said  tax  commissioners,  at  public  auction,  on  or  before 
the  first  day  of  January,  eighteen  hundred  and  sixty-seven,  at  not  less  than 
ten  dollars  per  acre  ;  and  the  lots  in  the  city  of  Port  Royal,  as  laid  down  by 
the  said  tax  commissioners,  and  the  lots  and  houses  in  the  town  of  Beau 
fort,  which  are  still  held  in  like  manner,  shall  be  sold  at  public  auction ; 
and  the  proceeds  of  said  sales,  after  paying  expenses  of  the  surveys  and 
sales,  shall  be  invested  in  United  States' bonds,  the  interest  of  which  shall 
be  appropriated,  under  the  direction  of  the  commissioner,  to  the  support 
of  schools,  without  distinction  of  color  or  race,  on  the  islands  in  the  parishes 
of  Saint  Helena  and  Saint  Luke. 

SEC.  9.  And  be  it  further  enacted,  That  the  assistant  commissioners  for 
South  Carolina  and  Georgia  are  hereby  authorized  to  examine  all  claims  to 
lands  in  their  respective  States  which  are  claimed  under  the  provisions  of 
General  Sherman's  special  field  order,  and  to  give  to  each  person  having  a 
valid  claim  a  warrant  upon  the  direct  tax  commissioners  for  South  Carolina 
for  twenty  acres  of  land ;  and  the  said  direct  tax  commissioners  shall  issue 
to  every  person,  or  to  his  or  her  heirs,  but  in  no  case  to  any  assigns,  pre 
senting  such  warrant,  a  lease  of  twenty  acres  of  land,  as  provided  for  in 
section  seven,  for  the  term  of  six  years ;  but  at  any  time  thereafter,  upon 
the  payment  of  a  sum  not  exceeding  one  dollar  and  fifty  cents  per  acre,  the 
person  holding  such  lease  shall  be  entitled  to  a  certificate  of  sale  of  said 
tract  of  twenty  acres  from  the  direct  tax  commissioner  or  such  officer  as 
may  be  authorized  to  issue  the  same  ;  but  no  warrant  shall  be  held  valid 
longer  than  two  years  after  the  issue  of  the  same. 

SEC.  10.  And  be  it  further  enacted,  That  the  direct  tax  commissioners 
for  South  Carolina  are  hereby  authorized  and  required  at  the  earliest  day 
practicable  to  survey  the  lands  designated  in  section  seven  into  lots  of  twenty 
acres  each,  with  proper  metes  and  bounds  distinctly  marked,  so  that  the 
several  tracts  shall  be  convenient  in  form,  and  as  near  as  practicable  have  an 
average  of  fertility  and  woodland  ;  and  the  expense  of  such  surveys  shall  be 
paid  from  the  proceeds  of  sales  of  said  lands,  or,  if  sooner  required,  out  of 
any  moneys  received  for  other  lands  on  these  islands,  sold  by  the  United 
States  for  taxes,  and  now  in  the  hands  of  the  direct  tax  commissioners. 

SEC.  11.  And  be  it  further  enacted,  That  restoration  of  lands  occupied 
by  freedmen  under  General  Sherman's  field  order  dated  at  Savannah,  Geor 
gia,  January  sixteenth,  eighteen  hundred  and  sixty-five,  shall  not  be  made 
until  after  the  crops  of  the  present  year  shall  have  been  gathered  by  the  oc 
cupants  of  said  lands,  nor  until  a  fair  compensation  shall  have  been  made  to 
them  by  the  former  owners  of  such  lands,  or  their  legal  representatives,  for 
all  improvements  or  betterments  erected  or  constructed  thereon,  and  after 
due  notice  of  the  same  being  done  shall  have  been  given  by  the  assistant 
commissioner. 

SEC.  12.   And  be  it  further  enacted,  That  the  commissioner  shall  have 


NOTES   TO    THE   FORTY-THIRD    EDITION.  433 


power  to  seize,  hold,  use,  lease,  or  sell  all  buildings  and  tenements,  and  any 
lands  appertaining  to  the  same,  or  otherwise,  formerly  held  under  color  of 
title  by  the  late  so-called  Confederate  States,  and  not  heretofore  disposed  of 
by  the  United  States,  and  any  buildings  or  lands  held  in  trust  for  the  same 
by  any  person  or  persons,  and  to  use  the  same  or  appropriate  the  proceeds 
derived  therefrom  to  the  education  of  the  freed  people;  and  whenever  the 
bureau  shall  cease  to  exist,  such  of  said  so-called  Confederate  States  as  shall 
have  made  provision  for  the  education  of  their  citizens  without  distinction 
of  color  shall  receive  the  sum  remaining  unexpended  of  such  sales  or  rentals, 
which  shall  be  distributed  among  said  States  for  educational  purposes  in 
proportion  to  their  population. 

SEC.  13.  And  be  it  further  enacted,  That  the  commissioner  of  this  bu 
reau  shall  at  all  times  co-operate  with  private  benevolent  associations  of 
citiz-ens  in  aid  of  freedmen,  and  with  agents  and  teachers,  duly  accredited 
and  appointed  by  them,  and  shall  hire  or  provide  by  lease  buildings  for 
purposes  of  education  whenever  such  associations  shall,  without  cost  to  the 
government,  provide  suitable  teachers  and  means  of  instruction ;  and  he 
shall  furnish  such  protection  as  may  be  required  for  the  safe  conduct  of 
such  schools. 

SEC.  14.  And  be  it  further  enacted,  That  in  every  State  or  district  where 
the  ordinary  course  of  judicial  proceedings  has  been  interrupted  by  the  re 
bellion,  and  until  the  same  shall  be  fully  restored,  and  in  every  State  or 
district  whose  constitutional  relations  to  the  government  have  been  practi 
cally  discontinued  by  the  rebellion,  and  until  such  State  shall  have  been 
restored  in  such  relations,  and  shall  be  duly  represented  in  the  Congress  of 
the  United  States,  the  right  to  make  and  enforce  contracts,  to  sue,  be  parties, 
and  give  evidence,  to  inherit,  purchase,  lease,  sell,  hold,  and  convey  real  and 
personal  property,  and  to  have  full  and  equal  benefit  of  all  laws  und  pro 
ceedings  concerning  personal  liberty,  personal  security,  and  the  acquisition, 
enjoyment,  and  disposition  of  estate,  real  and  personal,  including  the  con 
stitutional  right  to  bear  arms,  shall  be  secured  to  and  enjoyed  by  all  the 
citizens  of  such  State  or  district  without  respect  to  race  or  color,  or  previous 
condition  of  slavery.  And  whenever  in  either  of  said  States  or  districts  the 
ordinary  course  of  judicial  proceedings  has  been  interrupted  by  the  rebellion, 
and  until  the  same  shall  be  fully  restored,  and  until  such  State  shall  have 
been  restored  in  its  constitutional  relations  to  the  government,  and  shall  be 
duly  represented  in  the  Congress  of  the  United  States,  the  President  shall, 
through  the  commissioner  and  the  officers  of  the  bureau,  and  under  such 
rules  and  regulations  as  the  President,  through  the  Secretary  of  War,  shall 
prescribe,  extend  military  protection  and  have  military  jurisdiction  over  all 
cases  and  questions  concerning  the  free  enjoyment  of  such  immunities  and 
rights,  and  no  penalty  or  punishment  for  any  violation  of  law  shall  be  im 
posed  or  permitted  because  of  race  or  color,  or  previous  condition  of  slavery, 
other  or  greater  than  the  penalty  or  punishment  to  which  white  persons 
may  be  liable  by  law  for  the  like  offence.  But  the  jurisdiction  conferred  by 
this  section  upon  the  officers  of  the  bureau  shall  not  exist  in  any  State 
where  the  ordinary  course  of  judicial  proceedings  has  not  been  interrupted 
by  the  rebellion,  and  shall  cease  in  every  State  when  the  courts  of  the  State 
and  the  United  States  are  not  disturbed  in  the  peaceable  course  of  justice, 
and  after  such  State  shall  be  fully  restored  in  its  constitutional  relations  to 
the  government,  and  shall  be  duly  represented  in  the  Congress  of  the 
United  States. 

SEC.  15.  And  be  it  further  enacted,  That  all  officers,  agents,  and  em 
ployes  of  this  bureau,  before  entering  upon  the  duties  of  their  office,  shall 
take  the  oath  prescribed  in  the  first  section  of  the  act  to  which  this  is  an 

55 


,s"i 

of  Rep- 


434  NOTES    TO    THE    FORTY-THIKD    EDITION. 


amendment ;  and  all  acts  or  parts  of  acts  inconsistent  with  the  provisions 
of  this  act  are  hereby  repealed. 

SCIIUYLER   COLFAX, 

Speaker  of  the  House  of  Representatives. 

LA  FAYETTE  S.  FOSTER, 
President  of  the  Senate  pro  tempore. 

IN  THE  HOUSE  OF  REPRESENTATIVES,  U. 

July   16,  1866. 

The  President  of  the  United  States  having  returned  to  the  House  of  Rep 
resentatives,  in  which  it  originated,  the  bill  entitled  "  An  Act  to  continue  in 
force  and  to  amend  '  An  Act  to  establish  a  bureau  for  the  relief  of  freedmen 
and  refugees,'  and  for  other  purposes,"  with  his  objections  thereto,  the 
House  of  Representatives  proceeded,  in  pursuance  of  the  Constitution,  to 
reconsider  the  same  ;  and 

Resolved,  That  the  said  bill  pass,  two  thirds  of  the  House  of  Representa 
tives  agreeing  to  pass  the  same. 

Attest :  EDW.  McPiiERSON, 

Clerk  of  H.  Rep.  U.  S. 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

July  16,    1866. 

The  Senate  having  proceeded,  in  pursuance  of  the  Constitution,  to  re 
consider  the  bill  entitled  "  An  Act  to  continue  in  force  and  to  amend,  '  An 
Act  to  establish  a  bureau  for  the  relief  of  freedmen  and  refugees,'  and  for 
other  purposes,"  returned  to  the  House  of  Representatives  by  the  President 
of  the  United  States,  with  his  objections,  and  sent  by  the  House  of  Repre 
sentatives  to  the  Senate  with  the  message  of  the  President  returning  the 
bill : 

Resolved,  That  the  bill  do  pass,  two  thirds  of  the  Senate  agreeing  to  pass 
the  same. 

Attest:  J.  W.  FORNEY, 

Secretary  of  the  Senate  of  the  United  States. 

The  most  important  of  these  laws  related  to  military  government,  and  are 
known  as 

THE  RECONSTRUCTION  ACTS, 
of  which  the  following  are  the  most  memorable. 

CHAP.  CLIII.  —  An  Act  to  provide  for  the  more  efficient  Government  of  the 

Rebel  States. 

Whereas  no  legal  State  governments  or  adequate  protection  for  life  or 
property  now  exists  in  the  rebel  States  of  Virginia,  North  Carolina,  South 
Carolina,  Georgia,  Mississippi.  Alabama,  Louisiana,  Florida,  Texas,  and 
Arkansas  ;  and  whereas  it  is  necessary  that  peace  and  good  order  should  be 
enforced  in  said  States  until  loyal  and  republican  State  governments  can  be 
legally  established :  Therefore, 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  said  rebel  States  shall  be 
divided  into  military  districts,  and  made  subject  to  the  military  authority 
of  the  United  States  as  hereinafter  prescribed,  and  for  that  purpose  Vir 
ginia  shall  constitute  the  first  district ;  North  Carolina  and  South  Carolina 
the  second  district;  Georgia,  Alabama,  and  Florida  the  third  district; 
Mississippi  and  Arkansas  the  fourth  district;  and  Louisiana  and  Texas  the 
fifth  district. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  435 

SEC.  2.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of  the  Presi 
dent  to  assign  "to  the  command  of  each  of  said  districts  an  officer  of  the 
army,  not  below  the  rank  of  brigadier  general,  and  to  detail  a  sufficient 
military  force  to  enable  such  officer  to  perform  his  duties  and  enforce  his 
authority  within  the  district  to  which  he  is  assigned. 

SEC.  3.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of  each  officer 
assigned  as  aforesaid  to  protect  all  persons  in  their  rights  of  person  and 
property,  to  suppress  insurrection,  disorder,  and  violence,  and  to  punish,  or 
cause  to  be  punished,  all  disturbers  of  the  public  peace  and  criminals ;  and 
to  this  end  he  may  allow  local  civil  tribunals  to  take  jurisdiction  of  and  to 
try  offenders,  or,  when  in  his  judgment  it  may  be  necessary  for  the  trial  of 
offenders,  he  shall  have  power  to  organize  military  commissions  or  tribunals 
for  that  purpose,  an-d  all  interference  under  color  of  State  authority  with  the 
exercise  of  military  authority  under  this  act,  shall  be  null  and  void. 

SEC.  4.  And  be  it  further  enacted,  That  all  persons  put  under  military 
arrest  by  virtue  of  this  act  shall  be  tried  without  unnecessary  delay,  and  no 
cruel  or  unusual  punishment  shall  be  inflicted,  and  no  sentence  of  any  mili 
tary  commission  or  tribunal  hereby  authorized,  affecting  the  life  or  liberty 
of  any  person,  shall  be  executed  until  it  is  approved  by  the  officer  in  com 
mand  of  the  district,  and  the  laws  and  regulations  for  the  government  of 
the  army  shall  not  be  affected  by  this  act,  except  in  so  far  as  they  conflict 
with  its  provisions  :  Provided,  That  no  sentence  of  death  under  the  pro 
visions  of  this  act  shall  be  carried  into  effect  without  the  approval  of  the 
President. 

SEC.  o.  And  be  it  further  enacted,  That  when  the  people  of  any  one  of 
said  rebel  States  shall  have  formed  a  constitution  of  government  in  con 
formity  with  the  Constitution  of  the  United  States  in  all  respects,  framed 
by  a  convention  of  delegates  elected  by  the  male  citizens  of  said  State, 
twenty-one  years  old  and  upward,  of  whatever  race,  color,  or  previous  con 
dition,  who  have  been  resident  in  said  State  for  one  year  previous  to  the 
day  of  such  election,  except  such  as  may  be  disfranchised  for  participation  in 
the  rebellion  or  for  felony  at  common  law,  and  when  such  constitution  shall 
provide  that  the  elective  franchise  shall  be  enjoyed  by  all  such  persons  as 
have  the  qualifications  herein  stated  for  electors  of  delegates,  and  when 
such  constitution  shall  be  ratified  by  a  majority  of  the  persons  voting  on 
the  question  of  ratification  who  are  qualified  as  electors  for  delegates,  and 
when  such  constitution  shall  have  been  submitted  to  Congress  for  exam 
ination  and  approval,  and  Congress  shall  have  approved  the  same,  and  when 
said  State,  by  a  vote  of  its  legislature  elected  under  said  constitution,  shall 
have  adopted  the  amendment  to  the  Constitution  of  the  United  States,  pro 
posed  by  the  Thirty-ninth  Congress,  and  known  as  article  fourteen,  and 
when  said  article  shall  have  become  a  part  of  the  Constitution  of  the  United 
States,  said  State  shall  be  declared  entitled  to  representation  in  Congress, 
and  senators  and  representatives  shall  be  admitted  therefrom  on  their  taking 
the  oath  prescribed  by  law,  and  then  and  thereafter  the  preceding  sections 
of  this  act  shall  be  inoperative  in  said  State  :  Provided,  That  no  person  ex 
cluded  from  the  privilege  of  holding  office  by  said  proposed  amendment  to 
the  Constitution  of  the  United  States,  shall  be  eligible  to  election  as  a  mem 
ber  of  the  convention  to  frame  a  constitution  for  any  of  said  rebel  States, 
nor  shall  any  such  person  vote  for  members  of  such  conventioi:. 

SEC.  6.  And  be  it  further  enacted,  That,  until  the  people  of  said  rebel 
States  shall  be  by  law  admitted  to  representation  in  the  Congress  of  the 
United  States,  any  civil  governments  which  may  exist  therein  shall  be 
deemed  provisional  only,  and  in  all  respects  subject  to  the  paramount  au 
thority  of  the  United  States  at  any  time  to  abolish,  modify,  control,  or 


436  NOTES    TO  THE   FORTY-THIRD    EDITION. 


supersede  the  same ;  and  in  all  elections  to  any  office  under  such  provis 
ional  governments  all  persons  shall  be  entitled  to  vote,  tod  none  others, 
who  are  entitled  to  vote,  under  the  provisions  of  the  fifth  section  of  this 
act ;  and  no  person  shall  be  eligible  to  any  office  under  any  such  provisional 
governments  who  would  be  disqualified  from  holding  office  under  the  pro 
visions  of  the  third  article  of  said  constitutional  amendment. 

SCHUYLER    COLFAX, 

Speaker  of  the  House  of  Representatives . 
LA  FAYETTE   S.  FOSTER. 

President  of  the  Senate,  pro  tempore. 

IN  THE  HOUSE  OF  REPRESENTATIVES,  ) 
March  2,  1687.      £ 

The  President  of  the  United  States  having  returned  to  the  House  of 
Representatives,  in  which  it  originated,  the  bill  entitled  "  An  Act  to  pro 
vide  for  the  more  efficient  government  of  the  rebel  States,"  with  his  ob 
jections  thereto,  the  House  of  Representatives  proceeded,  in  pursuance  of 
the  Constitution,  to  reconsider  the  same ;  and 

Resolved,  That  the  said  bill  do  pass,  two  thirds  of  the  House  of  Repre 
sentatives  agreeing  to  pass  the  same. 

Attest:  EDWD.  MCPHERSON, 

Clerk  of  H.  R.  U.  S. 

IN  SENATE  OF  THE  UNITED  STATES, 
March  2,  1867.    ' 

The  Senate  having  proceeded,  in  pursuance  of  the  Constitution,  to  re 
consider  the  bill  entitled  "  An  Act  to  provide  for  the  more  efficient  govern 
ment  of  the  rebel  States,"  returned  to  the  House  of  Representatives  by  the 
President  of  the  United  States,  with  his  objections,  and  sent  by  the  House 
of  Representatives  to  the  Senate,  with  the  message  of  the  President  return 
ing  the  bill : 

Resolved,  That  the  bill  do  pass,  two  thirds  of  the  Senate  agreeing  to  pass 
the  same. 
Attest :  J.  W.  FORNEY, 

Secretary  of  the  Senate. 

CHAP.  VI. — An  Act  supplementary  to  an  Act  entitled  "  An  Act  to  provide 
for  the  more  efficient  Government  of  the  Rebel  States,"  passed  March 
second,  eighteen  hundred  and  sixty-seven,  and  to  facilitate  Restoration. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  before  the  first  day  of  Sep 
tember,  eighteen  hundred  and  sixty-seven,  the  commanding  general  in  each 
district  defined  by  an  act  entitled  "  An  Act  to  provide  for  the  more  efficient 
government  of  the  rebel  States,"  passed  March  second,  eighteen  hundred 
and  sixty-seven,  shall  cause  a  registration  to  be  made  of  the  male  citizens 
of  the  United  States,  twenty-one  years  of  age  and  upwards,  resident  in  each 
county  or  parish  in  the  State  or  States  included  in  his  district,  which 
registration  shall  include  only  those  persons  who  are  qualified  to  vote  for 
delegates  by  the  act  aforesaid,  and  who  shall  have  taken  and  subscribed  the 
following  oath  or  affirmation :  "I,  —  — ,  do  solemnly  swear  (or  affirm), 

in  the  presence  of  Almighty  God,  that  I  am  a  citizen  of  the  State  of ; 

that  I  have  resided  in  said  State  for months  next  preceding  this  day, 

and  now  reside  in  the   county  of—      — ,  or  the  parish  of ,  in  said 

State  (as  the  case  may  be) ;  that  I  am  twenty-one  years  old ;  that  I  have 
not  been  disfranchised  for  participation  in  any  rebellion  or  civil  war  against 
the  United  States,  nor  for  felony  committed  against  the  laws  of  any  State 


NOTES    TO    THE    FORTY-THIED    EDITION.  437 

or  of  the  United  States  ;  that  I  have  never  heen  a  member  of  any  State 
legislature,  nor  held  any  executive  or  judicial  office  in  any  State,  and  after 
wards  engaged  in  insurrection  or  rebellion  against  the  United  States,  or 
given  aid  or  comfort  to  the  enemies  thereof ;  that  I  have  never  taken  an 
oath  as  a  member  of  Congress  of  the  United  States,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  State  legislature,  or  as  an  executive 
or  judicial  officer  of  any  State,  to  support  the  Constitution  of  the  United 
States,  and  afterwards  engaged  in  insurrection  or  rebellion  against  the 
United  States,  or  given  aid  or  comfort  to  the  enemies  thereof;  that  I  will 
faithfully  support  the  Constitution  and  obey  the  laws  of  the  United  States, 
and  will,  to  the  best  of  my  ability,  encourage  others  so  to  do,  so  help  me 
God ;  "  which  oath  or  affirmation  may  be  administered  by  any  registering 
officer. 

SEC.  2.  And  be  it  further  enacted,  That  after  the  completion  of  the 
registration  hereby  provided  for  in  any  State,  at  such  time  and  places 
therein  as  the  commanding  general  shall  appoint  and  direct,  of  which  at 
least  thirty  days'  public  notice  shall  be  given,  an  election  shall  be  held  of 
delegates  to  a  convention  for  the  purpose  of  establishing  a  constitution 
and  civil  government  for  such  State  loyal  to  the  Union,  said  convention  in 
each  State,  except  Virginia,  to  consist  of  the  same  number  of  members  as 
the  most  numerous  branch  of  the  State  legislature  of  such  State  in  the  year 
eighteen  hundred  and  sixty,  to  be  apportioned  among  the  several  districts, 
counties,  or  parishes  of  such  State  by  the  commanding  general,  giving  to 
each  representation  in  the  ratio  of  voters  registered  as  aforesaid  as  nearly 
as  may  be.  The  convention  in  Virginia  shall  consist  of  the  same  number 
of  members  as  represented  the  territory  now  constituting  Virginia  in  the 
most  numerous  branch  of  the  legislature  of  said  State  in  the  year  eighteen 
hundred  and  sixty,  to  be  apportioned  as  aforesaid. 

SEC.  3.  And  be  it  further  enacted,  That  at  said  election  the  registered 
voters  of  each  State  shall  vote  for  or  against  a  convention  to  form  a  con 
stitution  therefor  under  this  act.  Those  voting  in  favor  of  such  a  conven 
tion  shall  have  written  or  printed  on  the  ballots  by  which  they  vote  for 
delegates,  as  aforesaid,  the  words  "  For  a  convention,"  and  those  voting 
against  such  a  convention  shall  have  written  or  printed  on  such  ballots  the 
words  "Against  a  convention."  The  persons  appointed  to  superintend 
said  election,  and  to  make  return  of  the  votes  given  thereat,  as  herein  pro 
vided,  shall  count  and  make  return  of  the  votes  given  for  and  against  a 
convention  ;  and  the  commanding  general  to  whom  the  same  shall  have 
been  returned  shall  ascertain  and  declare  the  total  vote  in  each  State  for 
and  against  a  convention.  If  a  majority  of  the  votes  given  on  that  question 
shall  be  for  a  convention,  then  such  convention  shall  be  held  as  hereinafter 
provided  ;  but  if  a  majority  of  said  votes  shall  be  against  a  convention, 
then  no  such  convention  shall  be  held  under  this  act  :  Provided,  That  such 
convention  shall  not  be  held  unless  a  majority  of  all  such  registered  voters 
shall  have  voted  on  the  question  of  holding  such  convention. 

SEC.  4.  And  be  it  further  enacted,  That  the  commanding  general  of  each 
district  shall  appoint  as  many  boards  of  registration  as  may  be  necessary, 
consisting  of  three  loyal  officers  or  persons,  to  make  and  complete  the 
registration,  superintend  the  election,  and  make  return  to  him  of  the  votes, 
list  of  voters,  and  of  the  persons  elected  as  delegates  by  a  plurality  of  the 
votes  cast  at  said  election ;  and  upon  receiving  said  returns  he  shall  open 
the  same,  ascertain  the  persons  elected  as  delegates,  according  to  the 
returns  of  the  officers  who  conducted  said  election,  and  make  proclamation 
thereof;  and  if  a  majority  of  the  votes  given  on  that  question  shall  be  for  a 
convention,  the  commanding  general,  within  sixty  days  from  the  date  of 
election,  shall  notify  the  delegates  to  assemble  in  convention,  at  a  time  and 


438  NOTES    TO    THE    FORTY-THIRD    EDITION. 


place  to  be  mentioned  in  the  notification,  and  said  convention,  when  organ 
ized,  shall  proceed  to  frame  a  constitution  and  civil  government  according 
to  the  provisions  of  this  act,  and  the  act  to  which  it  is  supplementary ;  and 
when  the  same  shall  have  been  so  framed,  said  constitution  shall  be  sub 
mitted  by  the  convention  for  ratification  to  the  persons  registered  under  the 
provisions  of  this  act  at  an  election  to  be  conducted  by  the  officers  or 
persons  appointed  or  to  be  appointed  by  the  commanding  general,  as  here 
inbefore  provided,  and  to  be  held  after  the  expiration  of  thirty  days  from 
the  date  of  notice  thereof,  to  be  given  by  said  convention ;  and  the  returns 
thereof  shall  be  made  to  the  commanding  general  of  the  district. 

SEC.  5.  And  be  it  further  enacted,  That  if,  according  to  said  returns, 
the  constitution  shall  be  ratified  by  a  majority  of  the  votes  of  the  registered 
electors  qualified  as  herein  specified,  cast  at  said  election,  at  least  one  half 
of  all  the  registered  voters  voting  upon  the  question  of  such  ratification,  the 
president  of  the  convention  shall  transmit  a  copy  of  the  same,  duly  certified, 
to  the  President  of  the  United  States,  who  shall  forthwith  transmit  the 
same  to  Congress,  if  then  in  session,  and  if  not  in  session,  then  immediately 
upon  its  next  assembling  ;  and  if  it  shall  moreover  appear  to  Congress  that 
the  election  was  one  at  which  all  the  registered  and  qualified  electors  in  the 
State  had  an  opportunity  to  vote  freely  and  without  restraint,  fear,  or  the 
influence  of  fraud,  and  if  the  Congress  shall  be  satisfied  that  such  constitu 
tion  meets  the  approval  of  a  majority  of  all  the  qualified  electors  in  the 
State,  and  if  the  said  constitution  shall  be  declared  by  Congress  to  be  in 
conformity  with  the  provisions  of  the  act  to  which  this  is  supplementary, 
and  the  other  provisions  6f  said  act  shall  have  been  complied  with,  and  the 
said  constitution  shall  be  approved  by  Congress,  the  State  shall  be  declared 
entitled  to  representation,  and  senators  and  representatives  shall  be  ad 
mitted  therefrom  as  therein  provided. 

SEC.  6.  And  be  it  further  enacted,  That  all  elections  in  the  States  men 
tioned  in  the  said  "  Act  to  provide  for  the  more  efficient  government  of  the 
rebel  States,"  shall,  during  the  operation  of  said  act,  be  by  ballot ;  and  all 
officers  making  the  said  registration  of  voters  and  conducting  said  elections 
shall,  before  entering  upon  the  discharge  of  their  duties,  take  and  subscribe 
the  oath  prescribed  by  the  act  approved  July  second,  eighteen  hundred  and 
sixty-two,  entitled  "  An  Act  to  prescribe  an  oath  of  office  :  "  Provided,  That 
if  any  person  shall  knowingly  and  falsely  take  and  subscribe  any  oath  in 
this  act  prescribed,  such  person  so  oifencling  and  being  thereof  duly  con 
victed  shall  be  subject  to  the  pains,  penalties,  and  disabilities  which  by  law 
are  provided  for  the  punishment  of  the  crime  of  wilful  and  corrupt  perjury. 

SEC.  7.  And  be  it  further  enacted,  That  all  expenses  incurred  by  the 
several  commanding  generals,  or  by  virtue  of  any  orders  issued,  or  appoint 
ments  made,  by  them,  under  or  by  virtue  of  this  act,  shall  be  paid  out  of 
any  moneys  in  the  treasury  not  otherwise  appropriated. 

SEC.  8.  And  be  it  further  enacted,  That  the  convention  for  each  State 
shall  prescribe  the  fees,  salary,  and  compensation  to  be  paid  to  all  del 
egates  and  other  officers  and  agents  herein  authorized  or  necessary  to  carry 
into  effect  the  purposes  of  this  act  not  herein  otherwise  provided  for,  and 
shall  provide  for  the  levy  and  collection  of  such  taxes  on  the  property  in 
such  State  as  may  be  necessary  to  pay  the  same. 

SEC.  9.  And  be  it  further  enacted,  That  the  word  "  article,"  in  the  sixth 
section  of  the  act  to  which  this  is  supplementary,  shall  be  construed  to  mean 
"section." 

SCHUYLER   COLFAX, 

Speaker  of  the  House  of  Representatives. 
B.  F.  WADE, 

President  of  the  Senate  pro  tempore-. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  439 

IN  THE  HOUSE  OF  REPRESENTATIVES,  U.  S., ) 
March  23,  1867.      $ 

The  President  of  the  United  States  having  returned  to  the  House  of 
Representatives,  in  which  it  originated,  the  bill  entitled  "An  Act  supple 
mentary  to  an  act  entitled  '  An  Act  to  provide  for  the  more  efficient  govern 
ment  of  the  rebel  States,'  passed  March  second,  eighteen  hundred  and 
sixty-seven,  and  to  facilitate  restoration,"  with  his  objections  thereto,  the 
House  of  Representatives  proceeded,  in  pursuance  of  the  Constitution,  to 
reconsider  the  same ;  and 

Resolved,  That  the  said  bill  do  pass,  two  thirds  of  the  House  of  Repre 
sentatives  agreeing  to  pass  the  same. 

Attest:  EDWD.  MCPHERSON, 

Cleric  H.  E.  U.  S. 

IN  SENATE  OF  THE  UNITED  STATES,  ) 
March  23,  1867.      $ 

^  The  Senate  having  proceeded,  in  pursuance  of  the  Constitution,  to  recon 
sider  the  bill  entitled  "  An  Act  supplementary  to  an  act  entitled  '  An  Act  to 
provide  for  the  more  efficient  government  of  the  rebel  States/  passed  March 
second,  eighteen  hundred  and  sixty-seven,  and  to  facilitate  restoration," 
returned  to  the  House  of  Representatives  by  the  President  of  the  United 
'States,  with  his  objections,  and  sent  by  the  House  of  Representatives  to  the 
Senate,  with  the  message  of  the  President  returning  the  bill  : 

Resolved,  That  the  bill  do  pass,  two  thirds  of  the  Senate  agreeing  to  pass 
the  same. 

Attest:  j.  w.  FORNEY, 

Secretary. 

CHAP.  XXX.  — An  Act  supplementary  to  an  Act  entitled  "An  Act  to  pro 
vide  for  the  more  efficient  Government  of  the  Rebel  States,  passed  on  the 
second  day  of  March,  eighteen  hundred  and  sixty-seven,  and  the  Act  sup 
plementary  thereto,  passed  on  the  twenty-third  day  of  March,  eighteen 
hundred  and  sixty-seven. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  it  is  hereby  declared  to 
have  been  the  true  intent  and  meaning  of  the  act  of  the  second  day  of 
March,  one  thousand  eight  hundred  and  sixty-seven,  entitled  "  An  Act  to 
provide  for  the  more  efficient  government  of  the  rebel  States,"  and  of  the 
act  supplementary  thereto,  passed  on  the  twenty-third  day  of  March,  in 
the  year  one  thousand  eight  hundred  and  sixty-seven,  that  the  governments 
then  existing  in  the  rebel  States  of  Virginia,  North  Carolina,  South  Caro 
lina,  Georgia,  Mississippi,  Alabama,  Louisiana,  Florida,  Texas,  and  Arkan 
sas  were  not  legal  State  governments ;  and  that  thereafter  said  governments, 
if  continued,  were  to  be  continued  subject  in  all  respects  to  the  military 
commanders  of  the  respective  districts,  and  to  the  paramount  authority  of 
Congress. 

SEC.  2.  And  be  it  further  enacted,  That  the  commander  of  any  district 
named  in  said  act  shall  have  power,  subject  to  the  disapproval  of  the 
General  of  the  army  of  the  United  States,  and  to  have  effect  till  disap 
proved,  whenever  in  the  opinion  of  such  commander  the  proper  administra 
tion  of  said  act  shall  require  it,  to  suspend  or  remove  from  office,  or  from 
the  performance  of  official  duties  and  the  exercise  of  official  powers,  any 
officer  or  person  holding  or  exercising,  or  professing  to  hold  or  exercise, 
any  civil  or  military  office  or  duty  in  such  district  under  any  power,  elec- 


440  NOTES    TO    THE   FORTY-THIRD    EDITION. 

tion,  appointment  or  authority  derived  from,  or  granted  by,  or  claimed 
under,  any  so-called  State  or  the  government  thereof,  or  any  municipal  or 
other  division  thereof,  and  upon  such  suspension  or  removal  such  com 
mander,  subject  to  the  disapproval  of  the  General  as  aforesaid,  shall  have 
power  to  provide  from  time  to  time  for  the  performance  of  the  said  duties 
of  such  officer  or  person  so  suspended  or  removed,  by  the  detail  of  some 
competent  officer  or  soldier  of  the  army,  or  by  the  appointment  of  some 
other  person,  to  perform  the  same,  and  to  fill  vacancies  occasioned  by  death, 
resignation,  or  otherwise. 

SEC.  3.  And  be  it  further  enacted,  That  the  General  of  the  army  of 
the  United  States  shall  be  invested  with  all  the  powers  of  suspension, 
removal,  appointment,  and  detail  granted  in  the  preceding  section  to  dis 
trict  commanders. 

SEC.  4.  And  be  it  further  enacted,  That  the  acts  of  the  officers  of  the 
army  already  done  in  removing  in  said  districts  persons  exercising  the 
functions  of  civil  officers,  and  appointing  others  in  their  stead,  are  hereby 
confirmed  :  Provided,  That  any  person  heretofore  or  hereafter  appointed 
by  any  district  commander  to  exercise  the  functions  of  any  civil  office,  may 
be  removed  either  by  the  military  officer  in  command  of  the  district,  or  by 
the  General  of  the  army.  And  it  shall  be  the  duty  of  such  commander  to 
remove  from  office  as  aforesaid  all  persons  who  are  disloyal  to  the  govern 
ment  of  the  United  States,  or  who  use  their  official  influence  in  any  manner 
to  hinder,  delay,  prevent,  or  obstruct  the  due  and  proper  administration  of 
this  act,  and  the  acts  to  which  it  is  supplementary. 

SEC.  5.  And  be  it  further  enacted,  That  the  boards  of  registration  pro 
vided  for  in  the  act  entitled  "  An  Act  supplementary  to  an  Act  entitled  '  An 
Act  to  provide  for  the  more  efficient  government  of  the  rebel  States,'  passed 
March  two,  eighteen  hundred  and  sixty-seven,  and  to  facilitate  restoration," 
passed  March  twenty-three,  eighteen  hundred  and  sixty-seven,  shall  have 
power,  and  it  shall  be  their  duty  before  allowing  the  registration  of  any 
person,  to  ascertain,  upon  such  facts  or  information  as  they  can  obtain, 
whether  such  person  is  entitled  to  be  registered  under  said  act,  and  the  oath 
required  by  said  act  shall  not  be  conclusive  on  such  question,  and  no  person 
shall  be  registered  unless  such  board  shall  decide  that  he  is  entitled  thereto  ; 
and  such  board  shall  also  have  power  to  examine,  under  oath  (to  be  admin 
istered  by  any  member  of  such  board),  any  one  touching  the  qualification  of 
any  person  claiming  registration  ;  but  in  every  case  of  refusal  by  the  board 
to  register  an  applicant,  and  in  every  case  of  striking  his  name  from  the  list 
as  hereinafter  provided,  the  board  shall  make  a  note  or  memorandum, 
which  shall  be  returned  with  the  registration  list  to  the  commanding  gen 
eral  of  the  district,  setting  forth  the  grounds  of  such  refusal  or  such  striking 
from  the  list :  Provided,  That  no  person  shall  be  disqualified  as  member  of 
any  board  of  registration  by  reason  of  race  or  color. 

SEC.  6.  And  be  it  further  enacted,  That  the  true  intent  and  meaning  of 
the  oath  prescribed  in  said  supplementary  act  is  (among  other  things), 
that  no  person  who  has  been  a  member  of  the  legislature  of  any  State, 
or  who  has  held  any  executive  or  judicial  office  in  any  State,  whether  he 
has  taken  an  oath  to  support  the  Constitution  of  the  United  States  or  not, 
and  whether  he  was  holding  such  office  at  the  commencement  of  the  rebel 
lion,  or  had  held  it  before,  and  who  has  afterwards  engaged  in  insurrection 
or  rebellion  against  the  United  States,  or  given  aid  or  co-mfort  to  the 
enemies  thereof,  is  entitled  to  be  registered  or  to  vote  ;  and  the  words 
"  executive  or  judicial  office  in  any  State  "  in  said  oath  mentioned  shall  be 
construed  to  include  all  civil  offices  created  by  law  for  the  administration  of 
any  general  law  of  a  State,  or  for  the  administration  of  justice. 


NOTES    TO    THE    FORTY-THIRD    EDITION.  441 

SEC.  7.  And  be  it  further  enacted,  That  the  time  for  completing  the 
original  registration  provided  for  in  said  act  may,  in  the  discretion  of  the 
commander  of  any  district,  be  extended  to  the  first  day  of  October,  eighteen 
hundred  and  sixty-seven ;  and  the  boards  of  registration  shall  have  power, 
and  it  shall  be  their  duty,  commencing  fourteen  days  prior  to  any  election 
under  said  act,  and  upon  reasonable  public  notice  of  the  time  and  place 
thereof,  to  revise,  for  a  period  of  five  days,  the  registration  lists,  and  upon 
being  satisfied  that  any  person  not  entitled  thereto  has  been  registered,  to 
strike  the  name  of  such  person  from  the  list,  and  such  person  shall  not  be 
allowed  to  vote.  And  such  board  shall  also,  during  the  same  period,  add 
to  such  registry  the  names  of  all  persons  who  at  that  time  possess  the 
qualifications  required  by  said  act  who  have  not  been  already  registered ; 
and  no  person  shall,  at  any  time,  be  entitled  to  be  registered  or  to  vote  by 
reason  of  any  executive  pardon  or  amnesty  for  any  act  or  thing  which, 
without  such  pardon  or  amnesty,  would  disqualify  him  from  registration  or 
voting. 

SEC.  8.  And  be  it  further  enacted,  That  section  four  of  said  last-named 
act  shall  be  construed  to  authorize  the  commanding  general  named  therein, 
whenever  he  shall  deem  it  needful,  to  remove  any  member  of  a  board  of 
registration  and  to  appoint  another  in  his  stead,  and  to  fill  any  vacancy  in 
such  board. 

SEC.  9.  And  be  it  further  enacted,  That  all  members  of  said  boards  of 
registration  and  all  persons  hereafter  elected  or  appointed  to  office  in  said 
military  districts,  under  any  so-called  State  or  municipal  authority,  or  by 
detail  or  appointment  of  the  district  commanders,  shall  be  required  to  take 
and  to  subscribe  the  oath  of  office  prescribed  by  law  for  officers  of  the 
United  States. 

SEC.  10.  And  be  it  further  enacted,  That  no  district  commander  or  mem 
ber  of  the  board  of  registration,  or  any  of  the  officers  or  appointees  acting 
under  them,  shall  be  bound  in  his  action  by  any  opinion  of  any  civil  officer 
of  the  United  States. 

SEC.  11.  And  be  it  further  enacted,  That  all  the  provisions  of  this  act 
and  of  the  acts  to  which  this  is  supplementary  shall  be  construed  liberally, 
to  the  end  that  all  the  intents  thereof  may  be  fully  and  perfectly  carried  out. 

SCHUYLER   COLFAX, 

Speaker  of  the  House  of  Representatives. 
B.  F.  WADE, 

President  of  the  Senate  pro  tempore. 

IN  THE  HOUSE  OF  REPRESENTATIVES,  U.  S.,  ? 

July  19,  1867.      $ 

The  President  of  the  United  States  having  returned  to  the  House  of 
Representatives,  in  which  it  originated,  the  bill  entitled  "  An  Act  supple 
mentary  to  an  act  entitled  '  An  Act  to  provide  for  the  more  efficient  govern 
ment  of  the  rebel  States/  passed  on  the  second  day  of  March,  eighteen 
hundred  and  sixty-seven,  and  the  act  supplementary  thereto  passed  on  the 
twenty-third  day  of  March,  eighteen  hundred  and  sixty-seven,"  with  his 
objections  thereto,  the  House  of  Representatives  proceeded,  in  pursuance 
<>f  the  Constitution,  to  reconsider  the  same  ;  and 

Resolved,    That  the  bill  do  pass,  two  thirds  of  the  House  of  Represen 
tatives  agreeing  to  pass  the  same. 
Attest:  EDWD.  MCPHERSON, 

Clerk  H.  R.  U.  S. 

56 


442  NOTES    TO    THE    FORTY-THIRD    EDITION. 


IN  THE  SENATE  OF  THE  UNITED  STATES,  > 
July  19,  1867.      $ 

The  Senate  having  proceeded,  in  pursuance  of  the  Constitution,  to  recon 
sider  the  bill  entitled  "  An  Act  supplementary  to  an  act  entitled  '  An  Act  to 
provide  for  the  more  efficient  government  of  the  rebel  States,'  passed  on  the 
second  day  of  March,  eighteen  hundred  and  sixty-seven,  and  the  act  sup 
plementary  thereto,  passed  on  the  twenty-third  day  of  March,  eighteen 
hundred  and  sixty-seven,"  returned  to  the  House  of  Representatives  by  the 
President  of  the  United  States,  with  his  objections,  and  sent  by  the  House 
of  Representatives  to  the  Senate,  with  the  message  of  the  President  return 
ing  the  bill : 

Resolved,   That  the  bill  do  pass,  two  thirds  of  the  Senate  agreeing  to 
pass  the  same. 
Attest:  J.  W.  FORNEY, 

Secretary. 
By  W.  J.  MCDONALD, 

Chief  Clerk. 

The  history  of  the  three  classes  of  military  or  provisional  governments 
which  have  been  erected  over  the  rebel  districts  is  well  known.  The  first 
were  created  by  President  Lincoln  as  commander-in-chief,  flagrante  bella, 
as  a  means  of  conducting  hostilities  against  the  enemy,  and  of  holding  con 
quered  districts  by  his  military  forces.  The  second  were  created  by  Pres 
ident  Johnson,  under  a  plan  or  policy  adopted  by  him,  as  an  organism  for 
reconstruction,  or  restoration  of  the  rebels  to  the  Union.  The  third  were 
military  governments  instituted  by  laws  of  Congress,  under  its  war  powers, 
for  the  purpose  of  more  effectual  control  of  our  enemies,  and  of  facilitating 
and  prescribing  the  conditions  of  their  return  to  the  Union.  The  circum 
stances  which  led  to  the  passage  of  these  acts  may  be  most  conveniently 
stated  in  language  used  upon  another  occasion.* 

"  While  the  war  was  going  on,  and  as  our  armies  recovered  possession  of 
the  hostile  country,  President  Lincoln,  as  commander-in-chief,  by  virtue  of 
his  war  powers,  erected  provisional  or  temporary  military  governments  over 
it,  to  establish  law  and  order,  and  to  protect  the  rights  of  loyal  or  peaceable 
citizens  who  were  found  therein. 

"  Andrew  Johnson,  when  chosen  Vice-President,  was  acting  as  military 
governor  of  Tennessee,  and  was  in  the  exercise  of  all  the  powers  which  were 
bestowed  upon  any  military  governor  in  the  rebel  States,  and,  as  I  have  oc 
casion  to  know,  was  fully  satisfied  that  he  was  acting  in  strict  accordance 
with  the  Constitution.  Very  soon  after  he  became  President,  he  undertook 
to  lay  down  or  resign  his  war  powers  as  commander-in-chief,  to  terminate 
all  the  military  governments  which  had  been  erected  by  President  Lincoln, 
and,  in  place  of  these,  to  construct  local  State  governments,  according  to  a 
scheme  of  his  own.  This  he  assumed  to  do  by  virtue  of  a  clause  in  the 
Constitution  which  reads  thus  :  '  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  republican  form  of  government.'  He  undertook  to 
execute  that  guarantee  by  withdrawing  military  governments  from  all  the 
States  ;  by  proclamations  of  peace,  by  pardons  and  amnesties,  and  by  causing 
or  allowing  such  of  the  inhabitants  of  rebel  districts  as  he  saw  fit  to  select  to 

*  See  Address  by  the  author,  printed  August  15,  1868. 


NOTES    TO    THE    FORTY-THIRD    EDITION.  443 

form  local  governments  over  the  several  States,  prescribing  what  laws  they 
should  pass,  Avhat  Constitutions  they  should  form,  what  amendments  of  our 
Constitution  they  should  ratify  ;  asserting  that  these  States  had  never  been 
out  of  the  Union  (or,  in  other  words,  had  never  lost  any  rights  by  the  rebel 
lion),  and  were  as  fully  entitled  under  the  Constitution  to  send  senators  and 
representatives  to  Congress,  as  though  they  had  never  become  public  en 
emies.  Although  the  President,  as  commander-in-chief  of  the  army  in  time 
of  civil  war,  lawfully  recognized  as  such,  may  erect  and  maintain  over  the 
public  enemies  of  the  United  States  military  governments,  and  may  admin 
ister  those  governments  according  to  his  will  and  pleasure,  subject  to  the 
laws  of  Congress  '  concerning  captures  on  land  and  water,'  and  '  for  the 
government  and  regulation  of  the  land  and  naval  forces,'  yet,  if  in  fact  the 
President  lays  down  his  war  power,  as  commander-in-chief,  by  declaring 
that  war  no  longer  exists,  and  if  he  claims,  by  virtue  of  his  office  as  chief 
executive,  to  act  as  governor  of  one  or  of  eleven  States  in  this  Union,  or  if 
he  claims  the  right  to  elect  or  to  appoint  governors  over  States,  or  to  give 
authority  to  any  man  or  to  any  number  of  men,  in  any  district  of  this  coun 
try,  to  elect  governors  or  other  officers,  or  to  organize  governments  in  any 
place,  I  am  unable  to  find  in  the  Constitution  of  the  United  States  any  pro 
vision  or  any  suggestion  which  authorizes  or  sustains  such  claims. 

"  When  President  Johnson  first  entered  upon  the  plan  of  erecting  State 
governments,  the  Secretary  of  State  announced  that,  as  they  had  been  initiated 
during  the  recess  of  Congress,  they  would  be  provisional  only,  and  that  this 
plan  of  reconstruction  would  be  submitted  to  Congress  at  its  next  session 
for  approval  or  rejection.  This  pledge  the  President  refused  to  perform ; 
and  instead  of  consulting  he  resisted  Congress.  He  conferred  on  governors 
of  his  own  appointment  a  greater  power  than  he  had  ever  intrusted  to  gen 
erals  in  command  of  military  districts ;  for,  in  his  proclamation  in  1865,  in 
reference  to  North  Carolina,  he  subjected  the  military  power  to  the  com 
mand  of  his  civil  governor.  He  orders,  — 

" '  That  the  military  commander  of  the  department,  and  all  officers  and 
persons  in  the  military  and  naval  service,  aid  and  assist  the  said  provisional 
governor  in  carrying  into  effect  this  proclamation.' 

"  In  the  summer  of  1865,  and  during  the  whole  of  the  year  1866,  Mr. 
Johnson  prosecuted  his  efforts  to  carry  out  his  policy,  and  the  result  was, 
that  every  southern  State  fell  into  the  hands  of  disloyal  enemies  of  the 
Union ;  disorder  and  violence  prevailed ;  northerners,  supporters  of  the 
government,  were  murdered,  robbed,  exiled,  unless  under  military  protec 
tion  ;  stay  laws,  laws  for  bringing  back  slavery  in  fact,  laws  authorizing 
cruel  punishments,  laws  disfranchising  the  colored  population,  were  passed, 
and  every  conceivable  wrong  and  oppression  were  inflicted  upon  those  who 
had  served  in  the  Union  armies ;  murderers  of  Union  men  went  openly  un 
punished,  and  every  crime  of  which  a  society  utterly  disorganized  was  ca 
pable  was  practised  with  impunity.  In  such  a  condition  of  affairs,  with 
leading  rebels  pardoned  and  promoted,  the  punishment  of  treason  stopped 
and  confiscation  ended,  such  encouragement  was  given  by  the  President  to  the 
rebels  that  they  claimed  to  have  as  good  a  right  as  citizens  of  the  loyal 
States  to  come  up  to  Washington  and  assume  the  reins  of  government. 
Under  the  lead  of  President  Johnson's  governors,  they  went  on  to  form 
State  governments  with  rebel  and  disloyal  officers,  and  to  elect  senators  and 
representatives  who  had  the  impudence  to  knock  for  admission  at  the  doors 
of  Congress.  Some  of  these  would-be  members  were  red-handed  traitors, 
who,  by  reason  of  their  crimes,  were  ineligible  to  office  by  the  laws  of  the 
country.'  Yet  the  President  insisted  on  urging  them  in,  and  reiterated  ad 
nauseam  his  opinion  that  it  was  the  duty  of  Congress  to  recognize  these 


444  NOTES    TO  THE   FORTY-THIRD    EDITION. 


sham  governments,  created  by  his  dictation,  in  violation  of  the  law,  the  Con 
stitution,  and  the  expressed  will  of  the  people.  Congress  was  thus  compelled 
either  to  allow  the  control  of  the  rebel  States  to  pass  back  into  the  hands  of 
the  rebels  themselves,  and  to  accept  as  senators  and  representatives  the  ring 
leaders  of  the  rebellion,  and  thus  to  perpetuate  disunion,  or  to  take  speedy 
and  decisive  measures  to  overthrow  these  governments.  Having  hesitated 
long  in  coming  to  an  open  rupture  with  President  Johnson,  having  resorted 
to  persuasion,  entreaty,  and  remonstrance  in  vain,  Congress  was  reluctantly 
constrained  to  use  its  power  and  perform  its  duty  in  preventing  the  Presi 
dent  from  any  further  violation  of  the  Constitution  by  continuing  his  illegal 
governments  in  the  Southern  States.  Therefore,  on  the  2d  of  March,  1867, 
after  thorough  debate,  was  passed  an  '  Act  to  provide  for  the  more  efficient 
government  of  the  rebel  States.'  This  was  followed,  on  the  22d  of  March, 
by  a  supplementary  '  Act  to  facilitate  restoration.'  And  to  these  a  recent 
amendment  has  been  added. 

"  These  statutes,  passed  by  overwhelming  majorities  over  the  President's 
vetoes,  are  called  the  Reconstruction  Acts.  They  declared  the  rebel  States 
still  subject  to  the  '  military  authority'  of  the  United  States,  divided  them 
into  military  districts,  required  the  President  to  assign  army  officers  to  the 
command  of  each  district,  and  to  detail  sufficient  military  force  to  enable 
them  to  enforce  their  authority.  They  made  it  the  duty  of  such  officers  ( to 
protect  all  persons  in  their  rights  of  person  and  property,'  '  to  suppress  in 
surrection,  disorder,  and  violence ;  to  punish  criminals  either  by  aid  of  civil 
tribunals  or  by  military  commissions.'  They  declared  that  '  all  interference 
under  color  of  State  authority  with  the  exercise  of  military  authority  under 
this  Act  (March  2)  shall  be  null  and  void.' 

"  These  acts  also  provided  for  the  formation  of  constitutions  by  delegates 
to  conventions  of  male  citizens  of  lawful  age,  '  without  distinction  of  race, 
color,  or  previous  condition,'  who  had  been  residents  in  such  States  one 
year  prior  to  the  election,  excepting  only  felons  and  those  who  might  be  dis 
franchised  as  rebels.  If  these  constitutions  thus  to  be  formed  should  be  so 
framed  as  to  conform  to  the  Constitution  of  the  United  States,  and  if  they 
should  provide  that  the  elective  franchise  should  be  enjoyed  by  all  male 
citizens  of  these  States,  twenty-one  years  of  age,  who  had  reside4  in  such 
States  one  year  before  election,  except  felons  and  disfranchised  rebels,  and 
if  such  constitutions  should  be  ratified  by  a  majority  of  persons  voting  on  the 
question  of  ratification  who  are  qualified  as  electors  of  delegates,  and  if  such 
constitutions  should  be  approved  by  Congress,  and  if  the  respective  State 
legislatures  should  ratify  the  Fourteenth  Amendment  of  the  Constitution 
of  the  United  States,  then,  when  such  Article  XIV.  should  become  a  part  of 
the  Constitution  of  the  United  States,  each  State,  on  complying  with  these 
conditions,  shall  be  entitled  to  representation  in  Congress.  It  was  also  pro 
vided  that  rebels  excluded  from  holding  office  by  the  Fourteenth  Amend 
ment  should  not  vote  for  or  be  members  of  the  constitutional  conventions. 

"  The  act  of  March  2d  asserted  supreme  military  authority  over  the  rebel 
States  until  their  re-admission  to  representation  in  Congress,  declared  all 
these  civil  governments  then  existing  as  provisional  only,  and  subject  to  the 
right  of  Congress  to  remove  or  overthrow  them,  and  designated  who  should 
and  who  should  not  have  the  right  to  vote  or  be  eligible  to  office.  Subse 
quent  acts  provided  for  registration  of  voters,  and  somewhat  modified  the 
requirement  as  to  the  number  of  voters  by  whom  constitutions  might  be 
adopted.  The  inhabitants  of  the  rebellious  districts,  under  the  provisions 
of  these  Reconstruction  Acts,  have  formed  State  constitutions,  have  organ 
ized  new  State  governments,  and,  with  the  exception  of  three  States,  have 
conformed  to  all  the  requirements  of  law,  and  are  now  re-admitted  to  repre 
sentation  in  Congress  and  to  full  standing. with  the  other  loyal  States. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  445 

There  is  little  reason  to  doubt  that  in  a  short  time  all  the  States  will  be 
restored ;  and  no  other  questions  can  be  raised  in  relation  to  these  Recon 
struction  Acts  than  these :  1st,  whether  Congress  had  authority  under  the 
Constitution  to  prescribe  terms  and  conditions  precedent  to  the  restoration 
of  the  rebel  States' to  representation;  and,  2d,  whether  the  terms  and 
conditions  of  such  re-admission  are  binding  upon  the  States  when  once 
admitted?*  These  questions,  which  involve  the  old  controversy  about 
State  rights,  if  not  speedily  and  conclusively  settled,  will  be  very  likely  to 
lead  to  another  rebellion  or  civil  war." 

In  the  winter  following  the  publication  from  which  the  foregoing  extract 
was  made,  the  most  important  of  the  questions  above  indicated  was  brought 
before  the  Supreme  Court  of  the  United  States  in  the  case  of  the  State  of 
Georgia  v.  Stanton,  and  it  was  unanimously  decided  (December  Term, 
1868-9),  "  That  the  distinction  between  the  judicial  and  political  power  is 
so  generally  acknowledged  in  the  jurisprudence  both  of  England  and  this 
country,  that  we  need  do  no  more  than  refer  to  some  of  the  authorities  on 
the  subject.  They  are  all  in  one  direction."  "  That  this  Court  has  no  juris 
diction  over  questions  of  political  rights,  rights  of  State  sovereignty,  of 
political  jurisdiction,  of  government,  of  the  question  of  corporate  exist 
ence  as  a  State ; "  and  inasmuch  as  the  complainant-?  sought  in  this  case 
to  enforce  or  protect  their  alleged  political  rights,  the  judges  refused  to 
issue  an  injunction  against  Mr.  Stanton  (who,  as  Secretary  of  War,  pro 
licec  vice,  represented  the  Executive)  to  prevent  him  from  causing  these  re 
construction  laws  to  be  enforced,  and  thereby  destroying  the  so-called  State 
government  of  Georgia.  (See  State  of  Georgia  v.  Stanton,  6  Wallace,  63.) 

On  the  24th  of  July,  1866,  by  joint  resolution,  No.  73,  Congress  declared 
Tennessee  restored  to  the  Union,  that  State  having  complied  with  the  requi 
sitions  of  previous  legislation,  and  also  declared  that  such  restoration  could 
be  made  only  by  the  consent  of  the  law-making  power  of  the  United  States. 

On  the  22d  of  June,  1868,  an  act  (see  Stat.  1868,  Chap.  69)  was  passed 
to  admit  the  State  of  Arkansas  to  representation  in  Congress,  upon  a  funda 
mental  condition  therein  stated ;  and  this  was  followed  on  the  25th  of  June, 
1868,  by  another  act  (Chap.  70)  for  admitting  to  representation  in  Congress 
the  States  of  North  and  South  Carolina,  Louisiana,  Georgia,  Alabama,  and 
Florida,  upon  the  terms  and  conditions  therein  set  forth. 

On  the  10th  of  April,  1869,  an  act  was  approved,  "  authorizing  the  sub 
mission  of  the  constitutions  of  Virginia,  Mississippi,  and  Texas  to  a  vote  of 
the  people,  and  authorizing  the  election  of  State  officers,  provided  by  said 
constitutions,  and  members  of  Congress."  (Chap.  17.) 

This  act  provides  that  the  President  may  submit  the  constitution  of  Vir 
ginia  to  a  vote  of  the  people  of  that  State,  with  a  separate  vote  for  its  dif 
ferent  provisions  ;  that  State  officers  and  members  of  Congress  may  be 
voted  for  at  the  same  election  ;  that  lists  of  voters  shall  be  prepared  and 
corrected,  and  elections  held  as  provided  by  laws  of  Congress.  Similar  pro- 

*  West  Virginia  was  admitted  as  a  State  into  the  Union,  on  condition  of  changing  her 
constitution.  (See  Act  December  31,  1862.  Proclamation,  April  20,  1863.)  All  the  subse 
quent  acts  for  admission  of  rebel  States  contain  conditions  prescribed  by  Congress. 


446  NOTES    TO    THE    FORTY-THIRD    EDITION. 

visions  are  made  for  Mississippi  and  for  Texas  ;  but  no  election  is  to  be 
held  in  the  latter  State  until  directed  by  the  President.  If  the  constitu 
tion  of  either  State  shall  be  ratified  therein,  the  legislatures  thereof  are  to 
meet  at  the  time  and  place  prescribed.  But  before  either  State  shall  be 
admitted  to  representation  in  Congress,  it  shall  ratify  the  Fifteenth  Amend 
ment  of  the  Constitution.  And  it  is  further  provided,  that  the  proceedings 
in  neither  of  these  States  shall  be  deemed  final,  and  operate  as  a  complete 
restoration  thereof  until  approved  by  Congress.  That  approval  having  been 
given,  these  States  have  been  restored  to  the  Union. 

MILITARY  COURTS. 

Most  if  not  all  of  the  acts  of  military  courts  of  the  United  States,  regu 
larly  constituted  during  the  rebellion,  have  been  confirmed  by  the  laws  of 
Congress  ;  and  jurisdiction  over  them  has  been  denied  to  civil  or  judicial 
courts  by  the  statute  of  March  2,  1867.  (Chap,  loo,  Stat.  p.  432.) 

CHAP.  CLV.  —  An  Act  to  declare  valid  and  conclusive  certain  Proclama 
tions  of  the  President,  and  Acts  done  in  Pursuance  thereof,  or  of  his  Or 
ders,  in  the  Suppression  of  the  late  Rebellion  against  the  United  States. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  all  acts,  proclamations,  and 
orders  of  the  President  of  the  United  States,  or  acts  done  by  his  authority 
or  approval  after  the  fourth  of  March,  anno  Domini  eighteen  hundred  and 
sixty-one,  and  before  the  first  day  of  July,  anno  Domini  eighteen  hundred 
and  sixty-six,  respecting  martial  law,  military  trials  by  courts  martial  or  mili 
tary  commissions,  or  the  arrest,  imprisonment,  and  trial  of  persons  charged 
with  participation  in  the  late  rebellion  against  the  United  States,  or  as 
aiders  or  abettors  thereof,  or  as  guilty  of  any  disloyal  practice  in  aid 
thereof,  or  of  any  violation  of  the  laws  or  usages  of  war,  or  of  affording  aid 
and  comfort  to  rebels  against  the  authority  of  the  United  States,  and  all 
proceedings  and  acts  done  or  had  by  courts  martial  or  military  commissions, 
or  arrests  and  imprisonments  made  in  the  premises  by  any  person  by  the 
authority  of  the  orders  or  proclamations  of  the  President,  made  as  afore 
said,  or  in  aid  thereof,  are  hereby  approved  in  all  respects,  legalized  and 
made  valid,  to  the  same  extent  and  with  the  same  effect  as  if  said  orders 
and  proclamations  had  been  issued  and  made,  and  said  arrests,  imprison 
ments,  proceedings,  and  acts  had  been  done  under  the  previous  express 
authority  and  direction  of  the  Congress  of  the  United  States,  and  in  pur 
suance  of  a  law  thereof  previously  enacted  and  expressly  authorizing  and 
directing  the  same  to  be  done.  And  no  civil  court  of  the  United  States,  or 
of  any  State,  or  of  the  District  of  Columbia,  or  of  any  district  or  territory 
of  the  United  States,  shall  have  or  take  jurisdiction  of,  or  in  any  manner 
reverse  any  of  the  proceedings  had  or  acts  done  as  aforesaid,  nor  shall  any 
person  be  held  to  answer  in  any  of  said  courts  for  any  act  done  or  omitted 
to  be  done  in  pursuance  or  in* aid  of  any  of  said  proclamations  or  orders, 
or  by  authority  or  with  the  approval  of  the  President  within  the  period 
aforesaid,  and  respecting  any  of  the  matters  aforesaid ;  and  all  officers 
and  other  persons  in  the  service  of  the  United  States,  or  who  acted  in  aid 
thereof,  acting  in  the  premises,  shall  be  held  prima  facie  to  have  been 
authorized  by  the  President ;  and  all  acts  and  parts  of  acts  heretofore 
passed,  inconsistent  with  the  provisions  of  this  act,  are  hereby  repealed. 

Approved  March  2,  1867. 


NOTES   TO    THE   FORTY-THIRD    EDITION.  447 

Such  have  been  the  principal  measures  of  the  government,  from  the  be 
ginning  of  the  war  down  to  the  present  time,  relating  to  the  questions  of 
military  or  provisional  government  and  reconstruction,  or  restoration  of 
rebel  States  to  their  normal  relations  to  the  Union.  They  have  fully  em 
bodied  and  practically  and  successfully  applied  the  war  powers  claimed  in 
this  essay.  Peace  has  been  restored,  slavery  has  been  destroyed,  liberty  has 
been  established  on  firm  foundations  ;  the  authority  of  the  Constitution  and 
laws  is  now  acknowledged  in  every  part  of  the  country.  It  is  possible,  even 
now,  to  estimate,  in  the  light  of  our  recent  history,  the  weight  of  those  ob 
jections  against  the  war  powers,  which,  in  the  early  years  of  our  conflict, 
were  urged  with  much  plausibility  and  force.  No  military  dictator  has 
seized  the  reins  of  power,  or  destroyed  republican  government.  The  rights 
to  life,  liberty,  and  property  have  not  grown  obsolete  ;  but  in  more  than  one 
half  of  our  country,  the  day  has  but  just  dawned  when  these  rights  have  been, 
for  the  first  time,  secured  to  four  millions  of  slaves,  now  made  freemen  and 
citizens.  Every  movement  throughout  the  war,  in  relation  to  the  rights  of 
the  people,  has  resulted  in  a  more  perfect,  practical  development,  application, 
and  establishment  of  the  principles  of  freedom  announced  by  our  ancestors 
in  the  Declaration  of  Independence,  and  in  the  Constitution.  The  loyal 
people  of  the  United  States  have  ratified  the  use  of  the  amplest  war  powers 
by  their  government  for  the  preservation  of  the  life  of  the  nation  when  as 
sailed  by  rebellion,  and  of  these  powers  none  rest  upon  a  firmer  foundation 
than  that  which  authorizes  Congress  to  provide  laws  for  the  military  govern 
ment  of  subjugated  enemies,  and  laws  for  the  restoration  of  rebel  States  to 
the  Union,  on  such  terms  and  conditions  as  it  shall  deem  expedient. 

MILITARY  COURTS  OF  THE  CONFEDERATES. 

The  following  statutes  passed  by  the  Congress  of  the  Confederate  States 
will  give  an  idea  of  the  construction  put  by  them  upon  the  Constitution,  so 
far  as  it  relates  to  the  power  of  instituting  military  courts  by  the  legislature :  — 

CHAP.  XXXVI.  —  An  Act  to  organize  Military  Courts  to  attend  the  Army 
of  the  Confederate  States  in  the  Field,  and  to  define  the  Powers  of  said 
Courts. 

The  Congress  of  the  Confederate  States  of  America  do  enact,  That  courts 
shall  be  organized,  to  be  known  as  military  courts,  one  to  attend  each  army 
corps  in  the  field,  under  the  direction  of  the  President.  Each  court  shall 
consist  of  three  members,  two  of  whom  shall  constitute  a  quorum,  and  each 
member  shall  be  entitled  to  the  rank  and  pay  of  a  colonel  of  cavalry,  shall 
be  appointed  by  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  and  shall  hold  his  office  during  the  war,  unless  the  court  shall  be 
sooner  abolished  by  Congress.  For  each  court  there  shall  be  one  Judge  Ad 
vocate,  to  be  appointed  by  the  President,  by  and  with  the  advice  and  consent 
of  the  Senate,  with  the  rank  and  pay  of  a  captain  of  cavalry,  whose  duties 
shall  be  as  prescribed  by  the  rules  and  articles  of  war,  except  as  enlarged  or 
modified  by  the  purposes  and  provisions  of  this  act,  and  who  shall  also  hold 
his  office  during  the  war,  unless  the  court  shall  be  sooner  abolished  by  the 
Congress ;  and  in  case  of  the  absence  or  disability  of  the  Judge  Advocate, 


448  NOTES    TO    THE    FORTY-THIRD    EDITION. 


upon  the  application  of  the  court,  the  commander  of  the  army  corps  to  which 
such  court  is  attached  may  appoint  or  detail  an  officer  to  perform  the  duties 
of  Judge  Advocate  during  such  absence  or  disability,  or  until  the  vacancy, 
if  any,  shall  be  filled  by  the  President. 

SEC.  2.  Each  court  shall  have  the  right  to  appoint  a  Provost  Marshal,  to 
attend  its  sittings,  and  execute  the  orders  of  the  court,  with  the  rank  and 
pay  of  a  captain  of  cavalry  ;  and  also  a  clerk,  who  shall  have  a  salary  of  one 
hundred  and  twenty-five  dollars  per  month,  who  shall  keep  the  record  of 
the  proceedings  of  the  court,  and  shall  reduce  to  writing  the  substance  of 
the  evidence  in  each  case,  and  file  the  same  in  court.  The  Provost  Marshal 
and  the  clerk  shall  hold  their  offices  during  the  pleasure  of  the  court.  Each 
member  and  officer  of  the  court  shall  take  an  oath  well  and  truly  to  dis 
charge  the  duties  of  his  office  to  the  best  of  his  skill  and  ability,  without 
fear,  favor,  or  reward,  and  to  support  the  Constitution  of  the  Confederate 
States.  Each  member  of  the  court,  the  Judge  Advocate,  and  the  clerk 
shall  have  the  power  to  administer  oaths. 

SEC.  3.  Each  court  shall  have  power  to  adopt  rules  for  conducting  busi 
ness,  and  for  the  trial  of  causes,  and  to  enforce  the  rules  adopted,  and  to 
punish  for  contempt,  and  to  regulate  the  taking  of  evidence,  and  to  secure 
the  attendance  of  witnesses,  and  to  enforce  and  execute  its  orders,  sentences, 
and  judgments,  as  in  cases  of  courts  martial. 

SEC.  4.  The  jurisdiction  of  each  court  shall  extend  to  all  offences  now 
cognizable  by  courts  martial  under  the  rules  and  articles  of  war  and  the 
customs  of  war,  and  also  to  all  offences  defined  as  crimes  by  the  laws  of  the 
Confederate  States,  or  of  the  several  States,  and  when  beyond  the  territory 
of  the  Confederate  States,  to  all  cases  of  murder,  manslaughter,  arson,  rape, 
robbery,  and  larceny,  as  defined  by  the  common  law,  when  committed  by 
any  private  or  officer  in  the  army  of  the  Confederate  States,  against  any 
other  private  or  officer  in  the  army,  or  against  the  property  or  person  of  any 
citizen  or  other  person  not  in  the  army  :  Provided,  Said  courts  shall  not  have 
jurisdiction  of  offenders  above  the  grade  of  colonel.  For  offences  cogniza 
ble  by  courts  martial,  the  court  shall,  on  conviction,  inflict  the  penalty  pre 
scribed  by  the  rules  and  articles  of  war,  and  in  the  manner  and  mode  therein 
mentioned  ;  and  for  offences  not  punishable  by  the  rules  and  articles  of  war, 
but  punishable  by  the  laws  of  the  Confederate  States,  said  court  shall  inflict 
the  penalties  prescribed  by  the  laws  of  the  Confederate  States ;  and  for 
offences  against  which  penalties  are  not  prescribed  by  the  rules  and  articles 
of  war,  nor  by  the  laws  of  the  Confederate  States,  but  for  which  penalties 
are  prescribed  by  the  laws  of  a  State,  said  court  shall  inflict  the  punishment 
prescribed  by  the  laws  of  the  State  in  which  the  offence  was  committed  :  Pro 
vided,  That  in  cases  in  which,  by  the  laws  of  the  Confederate  States,  or  of 
the  State,  the  punishment  is  by  fine  or  by  imprisonment,  or  by  both,  the 
court  may,  in  its  discretion,  inflict  any  other  punishment  less  than  death  ; 
and  for  the  offences  defined  as  murder,  manslaughter,  arson,  rape,  robbery, 
and  larceny,  by  the  common  law,  when  committed  beyond  the  territorial 
limits  of  the  Confederate  States,  the  punishment  shall  be  in  the  discretion 
of  the  court.  •  That  when  an  officer  under  the  grade  of  brigadier  general  or 
private  shall  be  put  under  arrest  for  any  offence  cognizable  by  the  court 
herein  provided  for,  notice  of  his  arrest  and  of  the  offence  with  which  he 
shall  be  charged  shall  be  given  to  the  Judge  Advocate  by  the  officer  order 
ing  said  arrest,  and  he  shall  be  entitled  to  as  speedy  a  trial  as  the  business 
before  said  court  will  allow, 

SEC.  5.  Said  courts  shall  attend  the  army,  shall  have  appropriate  quarters 
within  the  lines  of  the  army,  shall  be  always  open  for  the  transaction  of  busi 
ness,  and  the  final  decisions  and  sentences  of  said  courts  on  convictions  shall 


NOTES    TO    THE   FORTY-THIRD    EDITION.  449 

be  subject  to  review,  mitigation,  and  suspension,  as  now  provided  by  the 
rules  and  articles  of  war  in  cases  of  courts  martial. 

SEC.  6.  That  during  the  recess  of  the  Senate  the  President  may  appoint 
the  members  of  the  courts  and  the  Judges  Advocate  provided  for  in  the 
previous  sections,  subject  to  the  confirmation  of  the  Senate  at  its  session 
next  ensuing  said  appointments. 

Approved  October  9,  1862. 

CHAP.  XLIX.  —  An  Act  to  punish  and  represss  the  Importation,  by  our  ene 
mies,  of  Notes  purporting  to  be  Notes  of  the  Treasury  of  the  Confederate 
States. 

Whereas,  Manifestly  with  the  knowledge  and  connivance  of  the  Federal 
Government,  and  for  the  purpose  of  destroying  the  credit  and  circulation  of 
the  treasury  notes  of  this  government,  immense  amounts  of  spurious  or 
counterfeit  notes,  purporting  to  be  such  treasury  notes,  have  been  fabri 
cated  and  advertised  for  sale  in  the  enemy's  country,  and  have  been  brought 
into  these  States,  and  put  in  circulation  by  persons  in  the  service  of  the 
enemy  : 

The  Congress  of  the  Confederate  States  [of  America]  do  enact,  [That] 
every  person  in  the  service  of,  or  adhering  to,  the  enemy,  who  shall  pass,  or 
offer  to  pass,  any  such  spurious  or  counterfeit  note  or  notes,  as  aforesaid, 
or  shall  sell  or  attempt  to  sell  the  same,  or  shall  bring  any  such  note  or 
notes  into  the  Confederate  States,  or  shall  have  any  such  note  or  notes  in 
his  possession,  with  intent  to  pass  or  sell  the  same,  shall,  if  captured,  be  put 
to  death  by  hanging ;  and  every  commissioned  officer  of  the  enemy  who 
shall  permit  any  offence  mentioned  in  this  section  to  be  committed  by  any 
person  under  his  authority,  shall  be  put  to  death  by  hanging.  Every  per 
son  charged  with  an  offence  punishable  under  this  act  shall  be  tried  by  a 
military  court  in  such  manner,  and  under  such  regulations,  as  the  President 
shall  prescribe ;  and,  after  conviction,  the  President  may  commute  the  pun 
ishment  to  imprisonment  in  such  manner,  and  for  such  time,  as  he  may  deem 
proper,  and  may  pardon  the  offender  on  such  conditions  as  he  may  deem 
proper,  or  unconditionally. 

Approved  October  13,  1862. 

CHAP.  LXXVII.  —  An  Act  to  amend  an  Act  entitled  "  An  Act  to  organize 
Military  Courts  to  attend  the  Army  of  the  Confederate  States  in  the  Field, 
and  to  define  the  Powers  of  said  Courts,"  approved  October  9,  1862. 

The  Congress  of  the  Confederate  States  of  America  do  enact,  That  in  ad 
dition  to  one  military  court  to  attend  each  army  corps  in  the  field,  as  now 
authorized  by  an  act  entitled  "  An  Act  to  organize  military  courts  to  attend 
the  army  of  the  Confederate  States  in  the  field,  and  to  define  the  power  of 
said  courts,"  approved  October  ninth,  eighteen  hundred  and  sixty-two,  one 
military  court  shall  be  organized  in  each  of  such  military  departments  as,  in 
the  judgment  of  the  President,  the  public  exigencies  may  require;  to  be 
organized  in  the  manner  and  with  powers  prescribed  in  the  act  of  which 
this  is  amendatory. 

Approved  May  1,  1863. 

Joint  Resolution  on  the  subject  of  Retaliation. 

Resolved  by  the  Congress  of  the  Confederate  States  of  America,  In  re 
sponse  to  the  message  of  the  President,  transmitted  to  Congress  at  the  com 
mencement  of  the  present  session,  that,  in  the  opinion  of  Congress,  the 

57 


450  NOTES    TO    THE    FORTY-THIRD    EDITION. 

commissioned  officers  of  the  enemy  ought  not  to  be  delivered  to  the  author 
ities  of  the  respective  States,  as  suggested  in  the  said  message,  but  all  cap 
tives  taken  by  the  Confederate  forces  ought  to  be  dealt  with  and  disposed  of 
by  the  Confederate  Government. 

SEC.  2.  That,  in  the  judgment  of  Congress,  the  proclamations  of  the 
President  of  the  United  States  dated  respectively  September  twenty-second, 
eighteen  hundred  and  sixty-two,  and  January  first,  eighteen  hundred  and 
sixty-three,  and  the  other  measures  of  the  Government  of  the  United  States 
and  of  its  authorities,  commanders,  and  forces,  designed  or  tending  to 
emancipate  slaves  in  the  Confederate  States,  or  to  abduct  such  slaves,  or  to 
incite  them  to  insurrection,  or  to  employ  negroes  in  war  against  the  Confed 
erate  States,  or  to  overthrow  the  institution  of  African  slavery,  and  bring 
on  a  servile  war  in  these  States,  would,  if  successful,  produce  atrocious 
consequences,  and  they  are  inconsistent  with  the  spirit  of  those  usages 
which  in  modern  warfare  prevail  among  civilized  nations ;  they  may,  there 
fore,  be  properly  and  lawfully  repressed  by  retaliation. 

SEC.  3.  That  in  every  case,  wherein,  during  the  present  war,  any  viola 
tion  of  the  laws  or  usages  of  war  among  civilized  nations  shall  be,  or  has 
been,  done  and  perpetrated  by  those  acting  under  the  authority  of  the  Gov 
ernment  of  the  United  States,  on  the  persons  or  property  of  citizens  of  the 
Confederate  States,  or  of  those  under  the  protection  or  in  the  land  or  naval 
service  of  the  Confederate  States,  or  of  any  State  of  the  Confederacy,  the 
President  of  the  Confederate  States  is  hereby  authorized  to  cause  full  and 
ample  retaliation  to  be  made  for  every  such  violation,  in  such  manner  and 
to  such  extent  as  he  may  think  proper. 

SEC.  4.  That  every  white  person,  being  a  commissioned  officer,  or  acting 
as  such,  who,  during  the  present  war,  shall  command  negroes  or  mulattoes 
in  arms  against  the  Confederate  States,  or  who  shall  arm,  train;  organize,  or 
prepare  negroes  or  mulattoes  for  military  service  against  the  Confederate 
States,  or  who  shall  voluntarily  aid  negroes  or  mulattoes  in  any  military  en 
terprise,  attack,  or  conflict  in  such  service,  shall  be  deemed  as  inciting  ser 
vile  insurrection,  and  shall,  if  captured,  be  put  to  death,  or  be  otherwise 
punished  at  the  discretion  of  the  court. 

SEC.  5.  Every  person,  being  a  commissioned  officer,  or  acting  as  such  in 
the  service  of  the  enemy,  who  shall,  during  the  present  wrar,  excite,  attempt 
to  excite,  or  cause  to  be  excited,  a  servile  insurrection,  or  who  shall  incite, 
or  cause  to  be  incited,  a  slave  to  rebel,  shall,  if  captured,  be  put  to  death,  or 
be  otherwise  punished  at  the  discretion  of  the  court. 

SEC.  6.  Every  person  charged  with  an  offence  punishable  under  the  pre 
ceding  resolutions  shall,  during  the  present  war,  be  tried  before  the  military 
court  attached  to  the  army  or  corps  by  the  troops  of  which  he  shall  have 
been  captured,  or  by  such  other  military  court  as  the  President  may  direct, 
and  in  such  manner  and  under  such  regulations  as  the  President  shall  pre 
scribe,  and,  after  conviction,  the  President  may  commute  the  punishment  in 
such  manner  and  on  such  terms  as  he  may  deem  proper. 

SEC.  7.  All  negroes  and  mulattoes  who  shall  be  engaged  in  war,  or  be 
taken  in  arms  against  the  Confederate  States,  or  shall  give  aid  or  comfort  to 
the  enemies  of  the  Confederate  States,  shall,  when  captured  in  the  Confed 
erate  States,  be  delivered  to  the  authorities  of  the  State'  or  States  in  which 
they  shall  be  captured,  to  be  dealt  with  according  to  the  present  or  future 
laws  of  such  State  or  States. 

Approved  May  1,  1863. 


NOTES    TO    THE    FORTY-THIRD    EDITION.  451 


CHAP.  XXXIII.  — An  Act  to  amend  an  Act  entitled  "An  Act  to  organize 
Military  Courts  to  attend  the  Army  of  the  Confederate  States  in  the  Field, 
and  to  define  the  Powers  of  said  Courts. 

TJie  Congress  of  the  Confederate  States  of  America  do  enact,  That  the  act 
entitled  "  An  Act  to  organize  military  courts  to  attend  the  army  of  the 
Confederate  States  in  the  field,  and  to*  define  the  power  of  said  courts,"  be 
so  amended  as  to  authorize  the  President  to  establish  one  in  North  Alabama, 
which  shall  sit  at  such  times-  and  places  as  said  court  may  direct,  and  shall 
have  all  the  powers  and  jurisdiction  given  to  said  military  courts  by  said 
act ;  but  the  judges  thereof  shall  give  ten  days'  notice  of  the  times  and 
places  of  holding  said  courts  before  the  same  are  held  :  Provided,  however, 
That  said  court  shall  cease  to  exist  after  one  year  from  the  passage  of  this 
act,  unless  longer  continued  by  Congress. 

Approved  February  13,  1864. 


[No.  7.     See  pp.  48,  54,  59.] 

THE   RIGHT    OF   CAPTURE    OF   ENEMY'S    PROPERTY 
JURE  BELLI. 

In  this  essay,  which  was  published  after  the  passage  of  the  law  of  Con 
gress,  approved  July  13,  1861  (Chap.  3),  commonly  called  the  "  Non-inter 
course  Act,"  and  after  the  issue  of  the  President's  proclamation  of  August 
16,  1861,  which  designated  the  territorial  limits  of  the  rebellion,  the  au 
thor  claimed  "  that  the  United  States,  at  that  time,  possessed  full  belli 
gerent  rights  against  the  rebels ;  that  all  persons  who  had  been,  and  volun 
tarily  and  permanently  continued  to  be,  domiciled  within  the  district  of 
country  which  had  been  declared  in  rebellion  by  the  President's  proclama 
tion,  were,  in  law,  to  be  deemed  public  enemies  ;  that  all  their  property  was 
to  be  deemed  enemy's  property,  and  was  therefore  liable  to  capture  jure 
belli,  or  to  seizure  and  confiscation,  whether  the  owners  thereof  were  loyal 
and  friendly  to  the  government,  or  otherwise  ;  and  that  such  capture,  seiz 
ure,  and  confiscation  could  be  made  under  the  war  powers,  without  violating 
the  Constitution  or  the  laws  of  nations." 

It  is  interesting  to  observe  the  cautious  steps  by  which  the  courts  ad 
vanced  towards  a  recognition  of  these  principles  of  international  law.  In 
the  case  of  the  United  States  v.  The  Tropic  Wind,  decided  June  13, 
1861,  by  Dunlop,  J.,  he  maintained  the  right  of  the  President,  as  command 
er  of  the  navy  in  time  of  actual  hostilities,  to  blockade  the  port  of  Rich 
mond,  and  condemned  an  English  schooner  and  her  cargo  for  violating  that 
blockade.  In  April,  1862,  in  the  cases  of  the  Amy  Warwick  (Edmonds  et 
al.  claimants),  Judge  Sprague,  following  the  lead  of  Judge  Dunlop  and 
others  in  the  prize  cases  of  the  Tropic  Wind,  the  General  Parkhill,  the 
Crenshaw,  the  North  Carolina,  the  Pioneer,  and  the  Hattie  Jackson,  de 
cided  that  property  captured  at  sea  by  the  naval  forces  of  the  United 
States  on  the  10th  of  August,  1861,  owned  by  persons  domiciled  in  Rich- 


452  NOTES    TO    THE    FORTY-THIRD    EDITION. 

mond,  a  city  over  which  the  rebels  had  at  that  time  absolute  dominion, 
there  being  no  evidence  to  explain  or  rebut  the  presumption  of  the  personal 
hostility  of  such  owners,  which  arose  from  their  continued  residence  therein, 
was  lawful  prize.  (See  Sprague's  Reports,  124.)  But  having  no  occasion  to 
pass  upon  the  question  whether  the  vessel  or  cargo  would  have  been  lawful 
prize,  if  the  owners  had  been  loyal  or  friendly  to  the  Union,  notwithstand 
ing  their  residence  at  Richmond,  the  judge  expressly  declines  to  decide 
that  point.  "  In  questions  so  novel,  I  do  not  think  fit,"  says  he,  "  to  go 
farther  than  the  case  before  me  requires." 

In  the  second  prize  case  of  the  Amy  Warwick  (p.  143,)  Dunlop,  Non- 
cure  &  Co.  claimants,  he  places  his  decision  more  fully  on  the  ground  that 
residence  in  the  city  of  Richmond,  under  the  circumstances,  was  good  cause 
for  condemnation  of  the  captured  property.  "  These  claimants,"  says  he, 
"  do  not  even  offer  proof  of  their  loyalty,  and  there  is  a  high  probability 
that  they  are  willingly  co-operating  with  the  enemy.  But  if  this  be  not  so, 
they  were  at  the  time  of  their  capture,  and  have  ever  since  continued  to  be, 
under  his  absolute  control,  and  that  control  is  an  inexorable  military  des 
potism.  Every  dollar  put  into  their  hands,  or  under  their  control,  is,  to  all 
practical  purposes,  in  the  hands  of  the  enemy,  and  adds  to  his  strength." 
The  judge  thus  condemned  as  prize,  property  on  the  high  seas  belonging 
to  persons  who  were  actually  hostile,  or  were  presumed  to  be  hostile,  or 
were  under  the  actual  control  of  the  rebels,  and  were  so  situated  that  the 
proceeds,  if  restored  to  the  claimants,  would,  without  doubt,  have  fallen  into 
the  hands  of  the  enemy. 

These  cases,  however,  decided  only  questions  of  prize,  and  related  only 
to  captures  on  the  sea.  Judge  Sprague  expressed  no  opinion  on  the  ques 
tion  as  to  the  political  status  of  the  inhabitants  of  the  rebel  States.  But 
neither  his  decision,  nor  those  of  the  judges  who  had  preceded  him,  were 
acquiesced  in  by  the  claimants  ;  but  all  these  prize  cases  were  carried  by 
appeal  to  the  Supreme  Court  at  Washington,  and  were  finally  decided  at 
the  December  term,  1863-4.  (See  2  Black's  R.) 

In  relation  to  captures  on  land,  no  litigation  had,  at  that  early  period  of 
the  war,  been  brought  before  the  courts  of  the  United  States.  No  judicial 
decision  could  then  be  found,  which  claimed  for  the  government  the  right, 
jure  belli,  to  capture  the  property  on  land  of  ALL  persons  domiciled  in  the 
rebel  territory.  The  existence  of  that  right  was  almost  universally  ques 
tioned  or  denied.  It  was  said  that  those  only  were  liable  to  be  treated  as 
enemies,  and  to  have  their  property  seized  or  captured,  who  were  enemies 
in  fact,  or  who  had  engaged  in  open  hostilities  against  the  United  States. 
It  was  denied  that  persons  residing  in  the  Confederate  States,  who  were 
friendly  to  the  Union,  and  had  been  guilty  of  no  crime,  could  be  trans-' 
formed,  in  the  eye  of  the  law,  into  criminals  by  the  acts  of  others,  or  could 
be  made  to  suffer  penalties  for  crimes  which  they  had  not  committed.  The 
rights  and  immunities  guaranteed  to  citizens  of  the  United  States  by  the 


NOTES    TO    THE   FORTY-THIRD    EDITION.  453 

Constitution  were  claimed  by  and  for  them ;  and  they  asserted  that  the 
failure  of  the  government  to  secure  and  protect  them  in  the  enjoyment  of 
those  rights  was  a  breach  of  its  constitutional  duty,  which  not  only  ab 
solved  them  from  any  and  all  injurious  consequences  which  might  result 
from  the  rebellion,  but  even  entitled  them  to  indemnity  therefor.  The 
question  was  asked  by  judges,  by  statesmen,  and  by  well-informed  citizens, 
what  justification  could  be  found  for  treating  innocent  and  loyal  residents  in 
the  seceded  States,  like  rebel  soldiers  in  the  southern  armies,  as  public 
enemies  ;  for  subjecting  their  persons  and  property  to  seizure  and  capture  ; 
for  depriving  them  of  civil  and  political  rights?  How  could  such  injuries 
and  indignities  be  inflicted  on  peaceable  citizens,  they  asked,  without  violat 
ing,  in  every  clause,  that  Constitution  for  the  maintenance  whereof  our 
civil  war  was  professedly  carried  on  ?  In  answer  to  such  questions,  it  was 
necessary,  at  that  time,  to  present  such  arguments  as  were  set  forth  in  the 
pages  on  the  "  War  Powers,"  and  to  vindicate  a  right  of  our  government, 
now  no  longer  questioned,  to  capture  and  confiscate  the  property  of  all  resi 
dents  in  rebel  districts. 

It  seems  strange,  at  this  day  (1870),  to  find  how  slow  Congress  was  to  rec 
ognize  and  put  forth  its  powers  against  rebellion,  and  how  tardily  it  asserted 
the  right  of  war  to  capture  enemy's  property  on  land.  August  6,  1861,  an 
act  was  passed  (Chap.  60),  to  confiscate  such  property  of  rebels  as  had  been 
or  was  intended  to  be  used  by  its  owners  in  aid  of  insurrection  ;  but  it 
.provided  for  the  seizure  of  property  only  as  a  punishment  for  actual  or  in 
tended  crimes  of  individuals.  It  was  in  reality,  if  not  in  form,  a  prize  act, 
and  did  not  authorize  the  acquisition  of  enemy  property  by  capture ;  for 
it  did  not  assert  the  authority  of  the  United  States  to  capture  the  prop 
erty,  by  the  right  of  war,  of  persons  other  than  active  participants  in  re 
bellion.  This  statute  was  followed  by  that  of  July  17,  1862,  Chap.  195,  of 
which  the  chief  provisions  are  explained  in  Chap.  6  (pp.  112-116),  which 
was  added  to  this  essay  when  the  law  went  into  operation,  as  stated  in  the 
preface  to  the  second  edition.  In  this  act  Congress  fell  far  short  of  carrying 
into  effect  the  full  extent  of  power,  which,  as  the  author  believed,  rightfully 
belonged  to  the  government.  It  authorized  the  seizure  of  property  of  per 
sons  in  the  rebel  States  who  were  actually  engaged  in  prosecuting  war, 
and  the  condemnation  of  the  same  by  judicial  courts.  The  reader  will  find 
(on  pages  126  to  130)  the  reasons  then  stated  for  believing  that  this  law 
•would  prove  practically  inoperative.  The  history  of  the  last  six  years  has 
shown  how  far  the  anticipations  of  the  author  have  been  fulfilled.  Con 
gress  was  far  from  recognizing  or  sanctioning  the  right  of  the  army  to  cap 
ture  the  property  of  rebels,  in  the  rebel  States,  under  the  general  laws  of 
war,  and  left  the  question  still  open,  whether  our  military  forces  could, 
without  violating  the  laws  and  Constitution,  capture  the  property  of  per 
sons  domiciled  in  the  rebel  States,  unless  they  were  engaged  in  hostilities, 
or  unless  the  property  seized  was  intended  to  be  used  in  aid  of  rebellion. 


454  NOTES    TO    THE    FORTY-THIRD    EDITION. 

By  the  act  of  March  12,  1863  (Chap.  120),  it  was  provided  that  the  Sec 
retary  of  the  Treasury  might  appoint  agents  "  to  receive  and  collect  all 
abandoned  or  captured  property  "  in  the  insurrectionary  States,  "excepting 
such  as  had  been  used,  or  was  intended  to  be  used,  for  waging  or  carrying 
on  war  against  the  United  States,  such  as  arms,  ordnance,  ships,  steam 
boats,  or  other  water  craft,  and  the  furniture,  forage,  military  supplies,  or 
munitions  of  war  "  (these  exceptions  being  embraced  within  the  provisions 
of  the  former  statute),  and  allowed  such  abandoned  or  captured  property  to 
be  appropriated  to  public  use  ;  but  treasury  agents  were  required  to  receive 
the  same,  to  keep  records  thereof,  and  to  make  returns  of  the  proceeds  to 
the  treasury,  so  that  the  lawful  owner  might  be  able  to  recover  the  proceeds, 
if  he  should  be  rightfully  entitled  thereto.  Even  in  this  act  Congress  did 
not  declare  or  sanction  the  belligerent  right  of  capture,  jure  belli,  of  enemv's 
property,  and  the  absolute  transfer  of  title  to  enemy's  property  by  capture 
alone,  but  undertook  to  provide  a  temporary  stewardship  for  the  care  of 
such  property,  leaving  the  claims  of  owners  for  the  proceeds,  less  expenses, 
to  be  prosecuted  in  the  Court  of  Claims,  at  any  time  within  two  years  after 
the  war  should  be  terminated,  on  proof  of  ownership,  and  of  never  having 
aided  the  rebellion. 

It  will  be  observed  that  the  acts  of  Congress  of  July  13,  1861,  August  16, 
1861,  and  March  3,  1863,  relate  to  confiscation  for  intra-territorial  offences, 
and  have  no  application  to  a  libel  suit  against  a  prize  captured  at  sea.  (See 
the  Sally  Magee,  1863,  Blatchf.  Pr.  Cases,  382.)  They  do  not,  by  implication, 
exclude  seizure  and  confiscation  under  the  general  powers  of  the  government, 
upon  principles  of  public  law,  and  the  forfeiture  may  be  enforced  by  the  court, 
either  under  the  statute,  or,  through  its  powers,  under  process,  in  prize. 
(As  to  the  first  of  these  acts,  see  the  Sarah  Starr,  1861,  Blatchf.  Pr.  Cases.) 

The  power  of  "  making  rules  concerning  captures  on  land  and  water," 
which  is  superadded  in  the  Constitution  to  that  of  declaring  war,  is  not  con 
fined  to  captures  which  are  extra-territorial,  but  extends  to  rules  respecting 
enemy's  property  found  within  the  territory,  and  is  an  express  grant  to  Con 
gress  of  the  power  of  confiscating  enemy's  property  found  within  the  territory 
at  the  declaration  of  war,  as  an  independent  substantive  power,  not  included 
in  that  of  declaring  war.  (See  Brown  v.  United  States,  18 14.  8  Cranch,  1 10.) 
By  virtue  of  this  power,  articles  of  war  were  enacted  by  the  act  of  10th 
April,  1806,  of  which  Art.  LVIII.  provided  that  "all  public  stores  taken  in 
the  enemy's  camp,  towns,  forts,  or  magazines,  whether  of  artillery,  ammuni 
tion,  clothing,  forage,  or  provisions,  shall  be  secured  for  the  service  of  the 
United  States ;  for  the  neglect  of  which  the  commanding  officer  is  to  be 
amenable."  But  it  is  remarkable  that,  during  the  civil  war,  no  law  should 
have  been  passed,  which,  in  direct  terms,  asserts  the  rights  of  the  United 
States  to  capture,  jure  belli,  the  property  of  all  who  have  been  declared 
public  enemies  of  the  country,  domiciled  in  the  rebellious  district.  Of  the 
existence  of  that  right  probably  few,  if  any,  now  entertain  a  doubt.  It  has 


NOTES    TO    THE    FORTY-THIRD    EDITION.  455 

been  exercised  in  many  cases,  and  since  the  publication  of  the  earlier  edi 
tions  of  the  "  War  Powers,"  this  right  of  capture,  in  its  amplest  extent,  has 
been  directly,  or  by  necessary  implication,  recognized  and  sanctioned  by  the 
political  departments  of  the  government,  and  by  solemn  and  repeated  adju 
dications  of  the  courts  of  the  United  States. 

In  addition  to  the  authorities  cited  in  the  10th  (Boston)  edition,  the  reader 
is  referred  to  several  more  recent  decisions  in  the  Circuit  and  Supreme  Courts. 

See  Mrs.  Alexander's  Cotton,  2  Wallace,  R  417.    (1864-5.)  App.  532. 

The  Battle,  6  Wallace,  498. 

Armstrong's  Foundry,  6  Wallace,  769. 

U.  S.  v.  Republican  Banner  Office,  11  Pitt's  Leg.  Reg.  153. 

Cooledge  v.  Guthrie  (Opinion  of  Mr.  Justice  Swayne.   Appendix,  p.  591). 

WAR  POWERS  USED  BY  THE  CONFEDERATES. 

Every  clause  in  our  Constitution  which  contains  or  limits  the  war  powers 
of  our  government,  was  copied  unaltered  into  the  Constitution  of  the  Con 
federate  States.  The  interpretation  of  these  powers  by  the  Confederates  is 
embodied  in  the  several  acts  of  their  Provisional  Congress,  and  in  their 
Statutes  at  Large.  The  act  of  the  Provisional  Congress,  Chap.  3,  approved 
May  6,  1861,  in  which  war  was  declared,  was  as  follows  :  — 

An  Act  recognizing  tlie  Existence  of  War  between  the  United  States  and  the 
Confederate  States,  and  concerning  Letters  of  Marque,  Prizes  and  Prize 
Goods. 

Whereas,  the  earnest  efforts  made  by  this  Government  to  establish  friend 
ly  relations  between  the  Government  of  the  United  States  and  the  Confed 
erate  States,  and  to  settle  all  questions  of  disagreement  between  the  two 
Governments  upon  principles  of  right,  justice,  equity  and  good  faith,  have 
proved  unavailing  by  reason  of  the  refusal  of  the  Government  of  the  United 
States  to  hold  any  intercourse  with  the  commissioners  appointed  by  this 
Government  for  the  purposes  aforesaid,  or  to  listen  to  any  proposal  they 
had  to  make  for  the  peaceful  solution  of  all  causes  of  difficulty  between  the 
two  Governments :  and  whereas,  the  President  of  the  United  States  of 
America  has  issued  his  proclamation  making  requisition  upon  the  States  of 
the  American  Union  for  seventy-five  thousand  men  for  the  purpose,  as 
therein  indicated,  of  capturing  forts  and  other  strongholds  within  the  juris 
diction  of,  and  belonging  to,  the  Confederate  States  of  America,  and  has 
detailed  naval  armaments  upon  the  coasts  of  the  Confederate  States  of 
America,  and  raised,  organized  and  equipped  a  large  military  force  to  exe 
cute  the  purpose  aforesaid,  and  has  issued  his  other  proclamation  announ 
cing  his  purpose  to  set  on  foot  a  blockade  of  the  ports  of  the  Confederate 
States  :  and  whereas,  the  State  of  Virginia  has  seceded  from  the  Federal 
Union,  and  entered  into  a  convention  of  alliance  offensive  and  defensive  with 
the  Confederate  States,  and  has  adopted  the  Provisional  Constitution  of  the 
said  States  ;  and  the  States  of  Maryland,  North  Carolina,  Tennessee,  Ken 
tucky,  Arkansas  and  Missouri  have  refused,  and  it  is  believed  that  the  State 
of  Delaware  and  the  inhabitants  of  the  territories  of  Arizona  and  New  Mex 
ico,  and  the  Indian  territory  south  of  Kansas,  will  refuse  to  co-operate  with 
the  Government  of  the  United  States  in  these  acts  of  hostilities  and  wanton 


456  NOTES    TO    THE    FORTY-THIRD    EDITION. 

aggression,  which  are  plainly  intended  to  overawe,  oppress  and  finally  sub 
jugate  the  people  of  the  Confederate  States :  and  whereas,  by  the  acts  and 
means  aforesaid,  war  exists  between  the  Confederate  States  and  the  Gov 
ernment  of  the  United  States,  and  the  States  and  Territories  thereof,  except 
the  States  of  Maryland,  North  Carolina,  Tennessee,  Kentucky,  Arkansas, 
Missouri  and  Delaware,  and  the  Territories  of  Arizona  and  New  Mexico,  and 
the  Indian  Territory  south  of  Kansas  :  Therefore, 

SEC.  1.  The  Congress  of  the  Confederate  States  of  America  do  enact, 
That  the  President  of  the  Confederate  States  is  hereby  authorized  to  use 
the  whole  land  and  naval  force  .of  the  Confederate  States  to  meet  the  war 
thus  commenced,  and  to  issue  to  private  armed  vessels  commissions,  or 
letters  of  marque  and  general  reprisal,  in  such  form  as  he  shall  think  proper, 
under  the  seal  of  the  Confederate  States,  against  the  vessels,  goods  and 
effects  of  the  Government  of  the  United  States,  or  of  the  citizens  or  inhab 
itants  of  the  States  and  Territories  thereof,  except  the  States  and  Territories 
hereinbefore  named  :  Provided,  hoivever,  That  property  of  the  enemy  (unless 
it  be  contraband  of  war)  laden  on  board  a  neutral  vessel,  shall  not  be  subject 
to  seizure  under  this  act :  And  provided  further,  That  vessels  of  the  citizens 
or  inhabitants  of  the  United  States  now  in  the  ports  of  the  Confederate 
States,  except  such  as  have  been  since  the  fifth  of  April  last,  or  may  here 
after  be,  in  the  service  of  the  Government  of  the  United  States,  shall  be 
allowed  thirty  days  after  the  publication  of  this  act  to  leave  said  ports  and 
reach  their  destination  ;  and  such  vessels  and  their  cargoes,  excepting  arti 
cles  contraband  of  war,  shall  not  be  subject  to  capture  under  this  act  dur 
ing  said  period,  unless  they  shall  have  previously  reached  the  destination 
for  which  they  were  bound  on  leaving  said  ports. 

SEC.  2.  That  the  President  of  the  Confederate  States  shall  be,  and  he  is 
hereby,  authorized  and  empowered  to  revoke  and  annul,  at  pleasure,  all 
letters  of  marque  and  reprisal  which  he  may  at  any  time  grant  pursuant  to 
this  act. 

SEC.  3.  That  all  persons  applying  for  letters  of  marque  and  reprisal,  pur 
suant  to  this  act,  shall  state  in  writing  the  name  and  a  suitable  description 
of  the  tonnage  and  force  of  the  vessel,  and  the  name  and  place  of  residence 
of  each  owner  concerned  therein,  and  the  intended  number  of  the  crew  ; 
which  statement  shall  be  signed  by  the  person  or  persons  making  such  ap 
plication,  and  filed  with  the  Secretary  of  State,  or  shall  be  delivered  to  any 
other  officer  or  person  who  shall  be  employed  to  deliver  out  such  commis 
sions,  to  be  by  him  transmitted  to  the  Secretary  of  State. 

SEC.  4.  That  before  any  commission  or  letters  of  marque  and  reprisal 
shall  be  issued  as  aforesaid,  the  owner  or  owners  of  the  ship  or  vessel  for 
which  the  same  shall  be  requested,  and  the  commander  thereof  for  the  time 
being,  shall  give  bond  to  the  Confederate  States,  with  at  least  two  responsi 
ble  sureties  not  interested  in  such  vessel,  in  the  penal  sum  of  five  thousand 
dollars,  or  if  such  vessel  be  provided  with  more  than  one  hundred  and  fifty 
men,  then  in  the  penal  sum  of  ten  thousand  dollars,  with  condition  that  the 
owners,  officers  and  crew  who  shall  be  employed  on  board  such  commis 
sioned  vessel,  shall  and  will  observe  the  laws  of  the  Confederate  States, 
and  the  instructions  which  shall  be  given  them  according  to  law  for  the 
regulation  of  their  conduct,  and  will  satisfy  all  damages  and  injuries  which 
shall  be  done  or  committed  contrary  to  the  tenor  thereof,  by  such  vessel 
during  her  commission,  and  to  deliver  up  the  same  when  revoked  by  the 
President  of  the  Confederate  States. 

SEC.  5.  That  all  captures  and  prizes  of  vessels  and  property  shall  be  for 
feited  and  shall  accrue  to  the  owners,  officers  and  crews  of  the  vessels  by 
whom  such  captures  and  prizes  shall  be  made,  and  on  due  condemnation 


NOTES    TO    THE    FORTY-THIRD    EDITION.  457 

had,  shall-  be  distributed  according  to  any  written  agreement  which  shall  be 
made  between  them;  and  if  there  be  no  such  written  agreement,  then  one 
moiety  to  the  owners  and  the  other  moiety  to  the  officers  and  crew,  as  near 
ly  as  may  be,  according  to  the  rules  prescribed  for  the  distribution  of  prize 
money  by  the  laws  of  the  Confederate  States. 

SEC.  6.  That  all  vessels,  goods  and  effects,  the  property  of  any  citizen  of 
the  Confederate  States,  or  of  persons  resident  within  and  under  the  protec 
tion  of  the  Confederate  States,  or  of  persons  permanently  within  the  territo 
ries  and  under  the  protection  of  any  foreign  prince,  government  or  state  in 
amity  with  the  Confederate  States,  which  shall  have  been  captured  by  the 
United  States,  and  which  shall  be  recaptured  by  vessels  commissioned  as 
aforesaid,  shall  be  restored  to  the  lawful  owners,  upon  payment  by  them  of 
a  just  and  reasonable  salvage,  to  be  determined  by  the  mutual  agreement 
of  the  parties  concerned,  or  by  the  decree  of  any  court  having  jurisdiction, 
according  to  the  nature  of  each  case,  agreeably  to  the  provisions  established 
by  la\v.  And  such  salvage  shall  be  distributed  among  the  owners,  officers 
and  crews  of  the  vessels  commissioned  as  aforesaid,  and  making  such  cap 
tures,  according  to  any  written  agreement  which  shall  be  made  between 
them  :  and  in  case  of  no  such  agreement,  then  in  the  same  manner  and 
upon  the  principles  herein  before  provided  in  cases  of  capture. 

SEC.  7.  That  before  breaking  bulk  of  any  vessel  which  shall  be  captured 
as  aforesaid,  or  other  disposal  or  conversion  thereof,  .or  of  any  articles 
which  shall  be  found  on  board  the  same,  such  captured  vessel,  goods  or 
effects  shall  be  brought  into  some  port  of  the  Confederate  States,  or  of  a 
nation  or  state  in  amity  with  the  Confederate  States,  and  shall  be  proceed 
ed  against  before  a  competent  tribunal,  arid  after  condemnation  and  forfeit 
ure  thereof  shall  belong  to  the  owners,  officers  and  crew  of  the  vessel  cap 
turing  the  same,  and  be  distributed  as  before  provided  ;  and  in  the  case  of 
all  captured  vessels,  goods  and  effects,  which  shall  be  brought  within  the 
jurisdiction  of  the  Confederate  States,  the  district  courts  of  the  Confederate 
States  shall  have  exclusive  original  cognizance  thereof,  as  in  civil  causes  of 
admiralty  and  maritime  jurisdiction ;  and  the  said  courts,  or  the  courts, 
being  courts  of  the  Confederate  States,  into  which  such  cases  shall  be  re 
moved,  and  in  which  they  shall  be  finally  decided,  shall  and  may  decree  res 
titution  in  whole  or  in  part,  when  the  capture  shall  have  been  made  without 
just  cause.  And  if  made  without  probable  cause,  may  order  and  decree 
damages  and  costs  to  the  party  injured,  for  which  the  owners  and  command 
ers  of  the  vessels  making  such  captures,  and  also  the  vessels,  shall  be  liable. 

SEC.  8.  That  all  persons  found  on  board  any  captured  vessels,  or  on  board 
any  recaptured  vessel,  shall  be  reported  to  the  collector  of  the  port  in  the 
Confederate  States  in  which  they  shall  first  arrive,  and  shall  be  delivered 
into  the  custody  of  the  marshal  of  the  district,  or  some  court  or  military 
officer  of  the  Confederate  States,  or  of  any  State  in  or  near  such  port,  who 
shall  take  charge  of  their  safe  keeping  and  support,  at  the  expense  of  the 
Confederate  States. 

SEC.  9.  That  the  President  of  the  Confederate  States  is  hereby  author 
ized  to  establish  and  order  suitable  instructions  for  the  better  governing 
and  directing  the  conduct  of  the  vessels  so  commissioned,  their  officers  and 
crews,  copies  of  which  shall  be  delivered  by  the  collector  of  the  customs  to 
the  commanders,  when  they  shall  give  bond  as  before  provided. 

SEC.  10.  That  a  bounty 'shall  be  paid  by  the  Confederate  States  of  twenty 
dollars  for  each  person  on  board  any  armed  ship  or  vessel,  belonging  to  the 
United  States,  at  the  commencement  of  an  engagement,  which  shall  be 
burnt,  sunk  or  destroyed  by  any  vessel  commissioned  as  aforesaid,  which 
shall  be  of  equal  or  inferior  force,  the  same  to  be  divided  as  in  other  cases 

58 


458  NOTES    TO    THE   FORTY-THIRD    EDITION. 

of  prize  money ;  and  a  bounty  of  twenty-five  dollars  shall  be  paid  to  the 
owners,  officers  and  crews  of  the  private  armed  vessels  commissioned  as 
aforesaid,  for  each  and  every  prisoner  by  them  captured  and  brought  into 
port,  and  delivered  to  an  agent  authorized  to  receive  them,  in  any  port  of 
the  Confederate  States  ;  and  the  Secretary  of  the  Treasury  is  hereby  author 
ized  to  pay  or  cause  to  be  paid  to  the  owners,  officers  and  crews  of  such 
private  armed  vessels  commissioned  as  aforesaid,  or  their  agent,  the 
bounties  herein  provided. 

SEC.  11.  That  the  commanding  officer  of  every  vessel  having  a  commis 
sion  or  letters  of  marque  and  reprisal,  during  the  present  hostilities  between 
the  Confederate  States  and  the  United  States,  shall  keep  a  regular  journal, 
containing  a  true  and  exact  account  of  his  daily  proceedings  and  transac 
tions  with  such  vessel  and  the  crew  thereof;  the  ports  and  places  he  shall 
put  into  or  cast  anchor  in ;  the  time  of  his  stay  there  and  the  cause  thereof; 
the  prizes  he  shall  take  and  the  nature  and  probable  value  thereof;  the 
times  and  places  when  and  where  taken,  and  in  what  manner  he  shall  dis 
pose  of  the  same ;  the  ships  or  vessels  he  shall  fall  in  with ;  the  times  and 
places  when  and  where  he  shall  meet  with  them,  and  his  observations  and 
remarks  thereon ;  also,  of  whatever  else  shall  occur  to  him  or  any  of  his 
officers  or  marine,  or  be  discovered  by  examination  or  conference  with  any 
marines  or  passengers  of  or  in  any  other  ships  or  vessels,  or  by  any  other 
means  touching  the  fleets,  vessels  'and  forces  of  the  United  States,  their 
posts  and  places  of  station  and  destination,  strength,  numbers,  intents  and 
designs ;  and  such  commanding  officer  shall,  immediately  on  his  arrival  in 
any  port  of  the  Confederate  States  from  or  during  the  continuance  of  any 
voyage  or  cruise,  produce  his  commission  for  such  vessel,  and  deliver  up 
such  journal  so  kept  as  aforesaid,  signed  with  his  proper  name  and  hand 
writing,  to  the  collector  or  other  chief  officer  of  the  customs  at  or  nearest  to 
such  port ;  the  truth  of  which  journal  shall  be  verified  by  the  oath  of  the 
commanding  officer  for  the  time  being.  And  such  collector  or  other  chief 
officer  of  the  customs  shall,  immediately  on  the  arrival  of  such  vessel,  order 
the  proper  officer  of  the  customs  to  go  on  board  and  take  an  account  of  the 
officers  and  men,  the  number  and  nature  of  the  guns,  and  whatever  else 
shall  occur  to  him  on  examination  material  to  be  known ;  and  no  such  ves 
sel  shall  be  permitted  to  sail  out  of  port  again  until  such  journal  shall  have 
been  delivered  up,  and  a  certificate  obtained  under  the  hand  of  such  col 
lector  or  other  chief  officer  of  the  customs  that  she  is  manned  and  armed 
according  to  her  commission  ;  and  upon  delivery  of  such  certificate,  any 
former  certificate  of  a  like  nature  which  shall  have  been  obtained  by  the 
commander  of  such  vessel,  shall  be  delivered  up. 

SEC.  12.  That  the  commanders  of  vessels  having  letters  of  marque  and 
reprisal  as  aforesaid,  neglecting  to  keep  a  journal  as  aforesaid,  or  wilfully 
making  fraudulent  entries  therein,  or  obliterating  the  record  of  any  material 
transactions  contained  therein,  where  the  interest  of  the  Confederate  States 
is  concerned,  or  refusing  to  produce  and  deliver  such  journal,  commission 
or  certificate,  pursuant  to  the  preceding  section  of  this  act,  then  and  in  such 
cases  the  commissions  or  letters  of  marque  and  reprisal  of  sucli  vessel  shall 
be  liable  to  be  revoked ;  and  such  commanders  respectively  shall  forfeit  for 
every  such  offence  the  sum  of  one  thousand  dollars,  one  moiety  thereof  to 
the  use  of  the  Confederate  States,  and  the  other  to  the  informer. 

SEC.  13.  That  the  owners  or  commanders  of  vessels  having  letters  of 
marque  and  reprisal  as  aforesaid,  who  shall  violate  any  of  the  acts  of  Con 
gress  for  the  collection  of  the  revenue  of  the  Confederate  States,  and  for  the 
prevention  of  smuggling,  shall  forfeit  the  commission  or  letters  of  marque 
and  reprisal,  and  they  and  the  vessels  owned  or  commanded  by  them  shall 


NOTES    TO    THE    FORTY-THIRD    EDITION.  459 

be  liable  to  all  the  penalties  and  forfeitures  attaching  to  merchant  vessels  in 
like  cases. 

SEC.  14.  That  on  all  goods,  wares  and  merchandise  captured  and  made 
good  and  lawful  prizes  of  war,  by  any  private  armed  ship  having  commis 
sion  or  letters  of  marque  and  reprisal  under  this  act,  and  brought  into  the 
Confederate  States,  there  shall  be  allowed  a  deduction  of  thirty-three  and 
one  third  per  cent,  on  the  amount  of  duties  imposed  by  law. 

SEC.  15.  That  five  per  centum  on  the  net  amount  (after  deducting  all 
charges  and  expenditures)  of  the  prize  money  arising  from  captured  vessels 
and  cargoes,  and  on  the  net  amount  of  the  salvage  of  vessels  and  cargoes 
recaptured  by  the  private  armed  vessels  of  the  Confederate  States,  shall  be 
secured  and  paid  over  to  the  collector  or  other  chief  officer  of  the  customs, 
at  the  port  or  place  in  the  Confederate  States  at  which  such  captured  or 
recaptured  vessels  may  arrive,  or  to  the  consul  or  other  public  agent  of  the 
Confederate  States  residing  at  the  port  or  place  not  within  the  Confederate 
States  at  which  such  captured  or  recaptured  vessel  may  arrive.  And  the 
moneys  arising  therefrom  shall  be  held  and  are  hereby  pledged  by  the  Gov 
ernment  of  the  Confederate  States  as  a  fund  for  the  support  and  mainte 
nance  of  the  widows  and  orphans  of  such  persons  as  may  be  slain,  and  for 
the  support  and  maintenance  of  such  persons  as  may  be  wounded  and  disa 
bled  on  board  of  the  private  armed  vessels  commissioned  as  aforesaid,  in 
any  engagement  with  the  enemy,  to  be  assigned  and  distributed  in  such 
manner  as  shall  hereafter  be  provided  by  law. 

Approved  May  6,  1861. 

This  act  made  all  citizens  of  the  United  States,  with  certain  exceptions, 
alien  public  enemies  of  the  Confederacy,  and  subjected  their  persons  and 
property,  of  every  description,  real  and  personal,  to  the  sternest  rules  of 
belligerent  law.  It  authorized  letters  of  marque,  and  provided  for  the  adju 
dications  of  captured  prizes.  The  acts  of  August  8,  August  30,  December 
23,  1861,  and  February  15,  1862,  will  show  the  application  of  the  laws  of 
war  to  the  persons  and  property  of  others  not  embraced  in  this  act,  and 
will  give  a  striking  exposition  of  the  extreme  severity  with  which  belligerent 
law  may  be-  applied,  without  going  beyond  the  Constitution  as  understood 
by  rebels  then,  and  by  loyal  citizens  now.  For  these  acts,  see  note  to  page 
116,  "  On  Confiscation." 

[See  page  48.] 
DISTINCTION  BETWEEN   CAPTURE  AND  PRIZE. 

The  distinction  between  captures  on  land  and  prizes  on  the  high  seas,  in 
respect  to  the  mode  and  time  of  passing  or  changing  the  title  of  the  prop 
erty  from  the  owner  to  the  captor,  as  stated  in  the  text  (p.  48),  has  been 
recognized  by  the  courts  of  the  United  States  in  several  recent  cases.  In 
the  former  the  title  passes  as  soon  as  the  capture  is  complete.  In  the  latter 
the  right  of  property  remains  unchanged  until  a  final  decree  of  condemna 
tion  by  courts  of  the  country  of  the  captors.  See  The  Peterhoff,  Bl.  Pr. 
Cas.  620.  (1865.) 


460  NOTES    TO    THE   FORTY-THIRD   EDITION. 

[No.  8.     See  p.  275.] 
MILITARY  COMMISSIONS, 

As  regarded  by  the  Supreme  Court,  and  by  Congress.     The  Case  of  Ex  parte 

Milligan. 

Congress  passed  an  act,  March  3,  1863  (12  Stat.  755),  which  provided  that 
persons  imprisoned  under  the  authority  of  the  President,  and  not  held  as 
prisoners  of  war,  should,  under  the  circumstances  therein  set  forth,  be  en 
titled  to  be  brought,  by  writ  of  habeas  corpus,  before  certain  courts  of  the 
United  States,  and  to  be  discharged  from  military  custody.  Milligan  claimed 
his  release  under  the  provisions  of  this  act.  None  of  the  judges  cf  the 
Supreme  Court  questioned  its  constitutionality,  and  all  agreed  that  the  peti 
tioner's  case  came  within  its  provisions,  and  that  he  was  therefore  entitled 
to  his  discharge.  The  order  of  the  court  was,  "  That,  on  the  facts  stated  in 
the  said  petition  and  exhibits,  the  said  Milligan  ought  to  be  discharged  from 
custody  as  in  said  petition  is  prayed,  according  to  the  Act  of  Congress 
passed  March  3,  1863,  entitled  "An  Act  relating  to  habeas  corpus,  and 
regulating  judicial  proceedings  in  certain  cases." 

In  the  elaborate  opinions  of  the  Chief  Justice  and  of  Mr.  Justice  Davis,  a 
further  question  is  discussed  —  "  Whether  it  would  have  been  within  the 
power  of  Congress  to  authorize  such  a  military  commission  to  be  held  in 
Indiana,"  under  the  circumstances  set  forth  in  the  petition  and  exhibits? 

As  Congress  had  passed  no  law  authorizing  that  commission,  and  as  no 
"  case  "  had  arisen  involving  any  question  as  to  the  validity  of  such  a  law,  it 
is  clear  that  the  Supreme  Court  had  no  power  to  decide  this  abstract  ques 
tion.  It  must  therefore  be  deemed  as  still  undecided.  But  the  discussions 
and  the  reasons  of  the  opposing  judges  are  none  the  less  interesting  and 
instructive. 

It  was  held  by  the  court  that  a  certain  military  commission,  before  which 
one  Milligan  was  tried,  in  October,  1864,  at  Indianapolis,  had  no  jurisdic 
tion  to  try  and  sentence  him,  he  not  being  a  resident  of  one  of  the  rebellious 
States,  nor  a  prisoner  of  war,  but  a  citizen  of  Indiana  for  twenty  years  past, 
and  never  in  the  military  or  naval  service  of  the  United  States,  or  of  their 
enemies;  the  majority  of  the  court  claiming  to  have  "judicial  knowledge 
that  in  Indiana,  in  time  of  war,  the  Federal  authority  was  always  unop 
posed,  and  its  courts  always  open  to  hear  criminal  accusations,  and  redress 
grievances."  On  this  statement  of  facts  five  of  the  judges  were  of  opinion 
that  Milligan  had  the  right  of  trial  by  jury,  and  could  not  be  lawfully  tried 
by  the  military  commission.  The  same  judges  also  said  that  in  case  of 
foreign  invasion,  or  civil  war,  "  if  the  courts  are  closed,"  and  if  it  is  impos 
sible  to  administer  criminal  justice  according  to  law,  then,  on  the  theatre  of 
active  military  operations,  where  war  really  prevails,  there  is  a  necessity  to 
furnish  a  substitute  for  the  civil  authority  thus  overthrown,  to  preserve  the 


NOTES    TO    THE   FORTY-THIRD    EDITION.  461 

safety  of  the  army  and  of  society  ;  and  as  no  power  is  left  but  military,  it  is 
allowed  to  govern  by  martial  rule,  until  the  laws  can  have  their  free  course, 
but  that  martial  law  must  be  confined  to  the  locality  of  actual  war.  "  It  may 
be  a  necessity  in  one  State,  when  in  another  it  would  be  lawless  violence." 

It  will  be  observed  that  the  majority  of  the  court,  in  delivering  their 
opinion,  declare  and  assume,  as  the  basis  of  their  judgment,  the  existence 
of  a  state  of  facts,  of  which  they  claim  to  have  had  judicial  knowledge; 
namely,  that  in  Indiana,  at  the  time  and  place  where  MMligan  was  arrested, 
in  a  period  of  civil  war,  "  the  Federal  authority  was  always  unopposed." 

The  act  of  Congress  approved  March  3,  1863,  authorized  the  President, 
when  public  safety  required  it,  during  the  war,  to  suspend  the  writ  of  habeas 
corpus  throughout  the  United  States  ;  and  by  proclamation  of  September 
15,  1863,  he  had  suspended  the  privilege  of  the  writ  in  cases  where,  by  his 
authority,  military,  naval,  and  civil  officers  of  the  United  States  held  per 
sons  in  their  custody,  either  as  prisoners  of  war,  spies,  or  aiders  or  abettors 
of  the  enemy,  or  as  belonging  to  the  land  or  naval  forces  of  the  United 
States,  or  otherwise  amenable  to  military  law,  or  the  rules  and  articles  of 
war,  or  the  rules  and  regulations  prescribed  for  the  military  or  naval  ser 
vices,  by  authority  of  the  President,  or  for  resisting  a  draft,  or  for  any  other 
offence  against  the  military  or  naval  service." 

The  record  of  the  military  commission  showed  that  Milligan  was  guilty 
of  joining  and  aiding,  at  different  times,  between  October,  1863,  and  August, 
1864,  a  secret  society,  known  as  the  Order  of  American  Knights  or  Sons  of 
Liberty,  for  the  purpose  of  overthrowing  the  government  and  duly  consti 
tuted  authorities  of  the  United  States ;  that  he  was  guilty  of  holding  com 
munication  with  the  enemy  (in  Indiana) ;  that  he  conspired  with  others  to 
seize  the  munitions  of  war  of  the  United  States  stored  in  the  public  arsenals, 
and  to  liberate  prisoners  of  war  held  by  the  military  forces  of  the  United 
States  ;  that  he  resisted  the  draft  during  a  period  of  war  and  armed  rebel 
lion  against  the  authority  of  the  United  States,  at  or  near  Indianapolis,  and 
other  places  specified,  in  Indiana ;  that  that  State  was  within  the  military 
lines  of  the  army  of  the  United  States,  and  was  the  theatre  of  military  oper 
ations,  and  had  been  invaded,  and  was  constantly  threatened  to  be  invaded, 
by  the  enemy. 

In  this  state  of  facts,  shown  upon  the  record,  it  is  not  easy  to  see  how  the 
court  could  have  judicial  knowledge  "that  the  Federal  authority  was  always 
unopposed  in  Indiana ;  that  State  having  been  actually  invaded  by  the  pub 
lic  enemy,  and  invasion  being  then  threatened,  and  measures  being  then  in 
progress  among  the  inhabitants  of  Indiana  to  join  in  the  rebellion,  to  over 
throw  the  government,  to  seize  its  public  property,  to  liberate  its  prisoners 
of  war,  and  thus  to  create  an  army  of  rebels,  who,  with  our  prisoners  of  war, 
might  co-operate  with  Milligan  and  his  associates  in  acts  of  hostility  against 
the  United  States,  in  the  places  where  our  armies  were  being  recruited  and 
organized,  and  within  our  military  lines. 


4.62  NOTES    TO    THE    FORTY-THIRD    EDITION. 

The  fact,  whether  the  legal  status  of  war,  or  of  peace,  was  recognized  by 
the  political  department  of  the  government,1  was  of  vital  importance  to  the 
question  of  jurisdiction  of  the  military  commission  which  tried  Milligan. 
That  certain  courts  of  the  United  States  were  held  in  Indiana,  according  to 
law,  might  be  judicially  known  to  the  Supreme  Court  at  Washington ;  but 
whether,  in  time  of  civil  war,  the  authority  of  the  United  States  was  "  unop 
posed,"  or  whether  the  state  of  our  military  operations  in  that  district  was 
such  that  the  courts  could  be  held  only  because  they  were  protected  by  the 
presence  of  the  army,  as  was  the  case  in  some  localities,  which  had  not  been 
formally  declared  by  the  President  in  rebellion,  and  the  question  what  was 
the  military  status  of  that  district  in  which  the  petitioner  was  captured,  in 
volved  the  ascertainment  of  facts  of  a  political  character,  and  of  which  our 
Supreme  Court  has  not  hitherto  felt  authorized  to  take  judicial  cognizance. 

What  is  "  the  theatre  of  active  military  operations,"  in  which,  as  declared 
by  the  majority  of  the  court,  martial  law  must  be  allowed  to  govern? 
What,  in  time  of  civil  war,  which  involves  every  citizen,  is  "  the  actual  lo 
cality  of  war  "  ?  Who  is  to  determine  these  questions,  or  to  say  whether 
"  the  Federal  authority  is  unopposed,"  or  whether,  on  the  contrary,  hostile 
military  organizations  are  in  existence,  which,  if  not  opposed  by  arms,  or 
by  arrest  or  capture  of  their  leaders,  will  break  out  into  open  hostilities, 
when  it  may  be  too  late  to  avert  the  mischief?  When  civil  war  has  been 
recognized  or  declared  by  the  proper  departments  of  the  government,  who 
has  a  right  to  decide  where  rebellion  and  war  exist,  and  what  are  and  what 
are  not  "  active  hostilities  "  ?  What  department  has  the  right  to  decide,  for 
the  time  being,  the  legal  status  or  condition  of  the  inhabitants  of  any  por 
tion  of  any  State,  when  hostilities  are,  in  fact,  going  on,  or  are  threatened  ? 
Such  questions,  under  our  government,  cannot  be  decided  by  the  Judicial 
Department,  either  on  affidavits  or  other  evidence  taken  by  judges,  or  by 
their  orders,  nor  by  their  opinions  upon  supposed  judicial  knowledge  of  facts. 
These  are  political  questions  to  be  decided  by  the  political  department  of 
the  government,  and  the  courts  are  bound  to  respect  and  to  be  governed  by 
those  decisions. 

Whenever,  in  case  of  foreign  invasion,  or  of  civil  war,  any  section  of  the 
country  is  so  remote  from  all  military  or  naval  operations  as  to  have  re 
mained  undisturbed  by  the  presence  of  our  military  or  naval  forces,  or  by 
the  open  or  secret  hostilities  of  the  enemy ;  when  martial  law  has  not  been 
declared,  and  when  the  privilege  of  the  writ  of  habeas  corpus  has  not  been 
suspended  by  reason  of  public  danger ;  when  the  courts  are  open  and  un 
obstructed  in  the  discharge  of  their  official  duties,  without  being  dependent 
upon  the  military  power  of  the  country  for  their  protection,  the  government 
not  having  taken  those  measures  which  it  is  authorized  to  take  in  time  of 
insurrection,  invasion,  or  civil  war,  a  state  of  war  not  having  been  declared 
or  recognized  by  the  political  departments,  —  the  Executive  would  have  no 
right  to  institute  military  tribunals  for  the  punishment  of  citizens  not  be- 


NOTES    TO    THE   FORTY-THIRD    EDITION.  463 

longing  to  the  military  or  naval  service,  in  such  a  section  of  the  country, 
and  in  such  a  condition  of  affairs,  nor  to  deprive  citizens  of  any  of  the  privi 
leges  ordinarily  secured  to  them  under  the  Constitution.  Whenever  and 
wherever  a  state  of  peace  is  recognized  as  existing  by  the  political  depart 
ment  of  the  government,  the  laws  of  peace  prevail,  and  the  rights  secured 
to  citizens  in  time  of  peace  must  be  respected  and  maintained  ;  but  wherever 
and  whenever,  in  the  United  States,  a  state  of  war  is  so  recognized,  there 
and  then  the  rights  and  liabilities  of  war  attach. 

Among  the  questions  which  it  would  seem  desirable  to  have  raised  in 
preparing  the  record,  and  to  have  presented  on  the  part  of  the  United 
States,  for  the  judgment  of  the  court  in  Milligan's  case,  are,  1.  Whether, 
under  all  the  circumstances  of  hostilities  practised  against  the  Union  by  the 
public  enemy  in  Indiana,  a  state  of  war  had  in  fact  been  recognized  by  the 
political  departments  as  existing  at  the  time  and  place  when  said  Milligan 
was  captured  ?  2.  Whether  he  was  captured  and  held  as  a  prisoner  of  war  ? 
It  does  not  appear  that  he  was  alleged,  in  the  record,  to  have  been  cap 
tured  as  a  prisoner  of  war,  nor  that  the  officer  who  held  him  claimed  to 
hold  him  as  a  prisoner  of  war  ;  and  it  does  appear  that  Milligan  sought  his 
discharge  under  the  act  of  March  3,  1863,  which  is  by  its  own  terms  inap 
plicable  to  prisoners  of  war.  These  questions,  though  not  overlooked  by 
counsel,  were  not  properly  presented  by  the  record  for  adjudication.  On 
the  contrary,  the  only  question  presented  and  really  decided  was,  whether 
Milligan  was  entitled  to  his  discharge  under  the  provisions  of  the  law  of 
Congress  of  March  3,  1863  ?  and  the  court,  taking  it  as  conceded  that  the 
petitioner  was  not  captured  and  held  as  a  prisoner  of  war,  unanimously 
decided  that  he  was  entitled  to  his  discharge  by  the  provisions  of  that  law ; 
thus,  by  necessary  implication,  sustaining  the  validity  of  the  statute,  and  of 
the  war  powers  embodied  in  it.  This  case  decides  nothing  in  relation  to 
military  commissions  in  rebel  States.  Since  the  opinions  of  the  judges 
were  announced,  Congress  has  passed  a  statute  for  the  purpose  of  prevent 
ing  future  litigation  which  would  be  likely  to  arise  from  the  decisions  of 
military  courts  and  commissions  during  the  war,  by  extending  to  their  pro 
ceedings  a  full  sanction,  and  by  depriving  civil  courts  of  all  right  of  subse 
quent  jurisdiction  over  the  same.  (See  Act,  March  2,  1867,  Chap.  155 ;  also 
note  on  "  Military  Government.")  * 

See  Ex  parte  M  Cardie,  7  Wallace,  509. 

Act,  March  27,  1868,  15  Stat.  at  Large,  44. 

Ex  parte  Yerger,  8  Wallace,  85. 

*  Since  the  above  was  m  type,  the  Supreme  Court  have  fully  recognized  the  war  power 
of  the  government  to  establish  military  courts  in  the  rebel  territory.  See  The  Grape- 
shot,  9  Wallace,  131,  App.  001. 


464  NOTES    TO    THE    FORTY-THIRD   EDITION. 

[No.  9.     Extracts  from  the  Records  of  the  War  Department.] 
THE  EMANCIPATION  BUREAU. 

Letter  from  Hon.  Thomas  D.  Eliot,  Chairman  of  the  Committee  on  Eman 
cipation. 

HOUSE  OF  REPRESENTATIVES,  ? 

ROOMS  OF  COMMITTEE  ON  EMANCIPATION,  Dec.  26,  1863.  $ 
HON.  E.  M.  STANTON,  Secretary  of  War. 

DEAR  SIR  :  The  Committee  on  Emancipation  have  directed  me  to  sub 
mit  to  you  a  bill  creating  a  Bureau  of  Emancipation  in  your  department.  • 
Will  you  be  pleased  to  examine  the  bill,  and  make  such  suggestions  con 
cerning  it  as  may  seem  right  ?  The  committee  will  be  also  glad  if  they  may 
have  the  benefit  of  any  legal  suggestions  or  criticisms  from  the  eminent  law 
solicitor  of  your  department,  and  I  respectfully  ask  that  the  bill  may  be  re 
ferred  to  him  for  that  purpose. 

I  have  the  honor  to  be,  very  truly, 

Your  friend  and  servant, 

THOMAS  D.  ELIOT,  Chairman. 

To  the  Committee  on  Emancipation,  House  of  Representatives. 
HON.  THOMAS  D.  ELIOT,  Chairman: 

The  letter  of  which  the  foregoing  is  a  copy  has  been  received  by  the 
Secretary  of  War,  and  by  him  referred  to  me. 

In  compliance  with  the  request  which  your  chairman  has  made,  I  have 
the  honor  to  say,  that  I  have  examined  the  bill  presented  by  him  (H.  R., 
No.  51)  to  establish  a  Bureau  of  Emancipation,  aided  by  personal  ex 
planations,  which  he  has  done  nue  the  favor  to  make,  and  I  would  sug 
gest  that  there  be  inserted  in  the  first  page,  eleventh  line,  after  the  word 
enacted,  the  following:  "concerning  persons  of  African  descent,  and  of  per 
sons  who  are  or  shall  become  free  by  virtue  of  any  proclamation,  law,  or 
military  order,  issued,  enacted,  or  promulgated  during  the  present  rebellion, 
by  virtue  of  any  act  of  emancipation  which  has  been  or  shall  be  enacted  by 
any  State  for  the  freedom  of  such  persons  held  to  service  or  labor  within 
such  State,  or  who  shall  now  be  or  hereafter  become  otherwise  entitled  to 
their  freedom ;  and  such  commissioner  shall  have  authority,  under  the  direc 
tion  of  the  Secretary  of  War,  to  make  all  needful  rules  and  regulations  for 
the  general  superintendence,  direction,  and  management  of  all  such  persons, 
to  appoint  a  chief  clerk,"  &c. 

In  the  foregoing,  the  change  proposed  gives  the  commissioner  positive 
authority  to  make  "  rules  and  regulations,"  instead  of  merely  "  referring  to 
him  for  adjustment  and  determination  of  all  questions  which  may  arise  con 
cerning  persons  of  African  descent.  This  language  might  be  narrowed  by 
opponents  down  to  a  mere  arbitration  of  legal  questions. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  465 

It  might  not  be  safe  to  confine  the  commissioner's  authority  to  action 
under  laws  "  concerning  persons  of  African  descent,"  as  there  will  be  trou 
ble  in  practical  application  of  the  laws  of  genealogy  when  we  get  into 
courts,  especially  if  they  are  inclined  to  restrict  the  powers  and  jurisdiction 
of  the  commissioner  ;  '  it  is  therefore  proposed  to  include  not  only  per 
sons  of  African  descent,  but  "  all  who  are  or  shall  become  free,"  &c.  As 
the  law  is  retrospective  in  one  sense,  and  as,  before  it  shall  have  been 
approved,  persons  and  States,  perhaps  the  United  States  government,  may 
have  taken  further  steps  forward,  it  is  suggested  that  all  its  provisions 
should  embrace  not  only  those  who  now  are  free,  but  those  also  who  may 
hereafter  become  free.  The  phraseology  of  the  above  is  in  accordance  with 
that  idea. 

On  the  fourth  page,  ninth  line,  it  is  proposed  to  insert  the  following 
amendment,  viz. :  after  the  words,  "  and  the  said,"  insert  the  following : 
"  commissioner,  and  by  his  direction  the  said  assistant  commissioners  shall 
have  power  to  permit  persons  of  African  descent  and  persons  who  are  or 
shall  have  become  free  as  aforesaid  under  such  rules  and  regulations  as  may 
be  from  time  to  time  prescribed  by  said  commissioner,  and  approved  by  the 
Secretary  of  War,  to  occupy,  cultivate,  and  improve  all  lands  lying  within 
those  districts  now  or  heretofore  in  rebellion,  which  lands  may  have  been 
or  may  hereafter  be  abandoned  by  their  former  owners,  and  all  real  estate  to 
which  the  United  States  shall  have  acquired  title,  and  which  shall  not  have 
been  previously  appropriated  by  the  government  to  other  uses."  With 
the  foregoing  amendments  and  additions,  it  seems  to  me  that  the  bill 
will  give  ample  power  to  accomplish  the  object  desired,  as  I  suppose, 
by  the  honorable  committee. 

I  hope,  however,  that  it  will  not  be  deemed  an  impropriety  for  me  to  make 
another  suggestion.  The  work  laid  out  for  the  Bureau  of  Emancipation  is  of 
immense  magnitude.  Two  and  a  half  millions  of  wards,  driven  from  their  ac 
customed  shelters  by  the  sharp  catastrophes  of  war,  landless,  houseless,  home 
less,  appeal  to  the  government  to  guard  and  save  them.  From  their  earliest 
years  deprived  of  the  light  of  knowledge,  they  are  children,  able  as  yet  to 
see  only  the  star  of  freedom.  They  feel  with  hope  and  confidence  that  the 
flag  which  brings  to  them  liberty  will  spread  over  them  the  mantle  of  its  protec 
tion.  In  the  heart  of  this  great  people  every  pulsation  throbs  for  freedom. 
The  instincts  of  national  honor  will  allow  no  faltering  and  no  failure  in 
our  duty  to  the  oppressed  freedmen,  who  stand  shoulder  to  shoulder  in  this 
struggle  for  our  country's  safety  and  renown.  I  therefore  homor  you,  gen 
tlemen,  who  see  your  high  duty,  and  mean  to  perform  it. 

The  plan  proposed  in  this  bill  is  for  the  organization  of  a  bureau  in  the 
War  Department.  Perhaps  this  is  the  best  means  of  commencing  the  great 
work ;  but  I  think  the  time  will  soon  come,  if  it  has  not  already  arrived, 
when  the  duties  of  this  bureau  will  require  the  powers  and  merit  the  dignity 
of  a  separate  executive  department. 

59 


466  NOTES    TO    THE    FORTY-THIRD    EDITION. 

There  are  several  subjects  which  might  be  advantageously  grouped  to 
gether,  and  ought  to  be  placed  under  the  management  of  one  controlling 
mind.  Among  them  are  the  following  :  — 

1.  Taking  possession,  on   behalf  of  the  United   States,  of  all  real  estate 
abandoned  by  its  owners  who  have  joined  the  rebels. 

2.  Taking  possession  of  all  real  estate  forfeited  to  the  United  States,  to 
be  sold  for  taxes,  whether  bought  in  by  order  of  the  President  of  the  United 
States,  or  sold  to  settlers  and  others. 

3.  Taking  possession  of  all  lands  confiscated  by  the  United  States. 

4.  Taking  possession  of  all  personal  property  of  the  enemy  derelict,  aban 
doned,  or  captured,  except  prizes  at  sea. 

5.  Taking  care  of  and  making  provision  for  all  persons  now  freed  or  here 
after  to  be  freed  under  any  laws  of  the  United  States  or  proclamations  of 
the  President,  or  acts  of  manumission. 

6.  Taking  care  of  all  colored  men  in  the  rebellious  districts  who  were 
free  before  the  war,  and  of  all  fugitives  thereto  from  loyal  States. 

7.  Regulating  all  legal  proceedings  for  the  confiscation  of  rebel  property 
in  all  the  courts.     The  United  States  attorney  or  special  attorney  to  act  un 
der  orders  of  the  new  department,  so  far  as  respects  these  proceedings. 

8.  The  administration   of  all  laws,  rules,  and  regulations  relating  to  the 
MIGRATION  of  colored  persons  to  and  from  the  rebel  States. 

9.  And  of  all  laws  relating  to  the  compensation,  if  any,  which  the  govern 
ment  may  hereafter  give  to  aid  loyal  States  in  emancipating  slaves. 

10.  Controlling  all  other  matters  relating  to  the  emancipation,  its  pro 
cesses,  its   rules  and  regulations,  &c.,  and  the  protection  of  the  interests  of 
the  colored  men  on  one  hand,  and  the  United  States  on  the  other. 

These  subjects  are  intimately  connected  together ;  they  would  require 
genius,  active  energy,  and  powerful  executive  talent.  The  Secretaries  of 
War  and  of  the  Treasury  are  already  so  overwhelmed  with  labor  and  re 
sponsibility,  that  it  is  ungenerous  to  demand  of  either  of  them  to  assume 
the  herculean  task.  The  labors  of  this  Emancipation  Department  will  be 
unsurpassed  by  those  of  any  member  of  the  Cabinet.  Its  importance  to  the 
ultimate  issue  of  the  war,  to  the  reputation  of  our  country  abroad,  to  the 
moral  character  of  our  people  in  the  Southern  States,  to  the  treasury,  to  the 
soldiers,  and  to  the  industrial  interests  of  this  great  nation,  can  hardly  be 
over-estimated.  Whoever  is  competent  to  fill  the  office  of  Secretary  of 
Emancipation  should  have  a  seat  in  the  Cabinet,  and  should  also  enjoy  the 
confidence  and  co-operation  of  that  great  and  good  man,  whose  proclamation 
of  freedom  has  re-created  a  nation,  and  will  cause  his  name  to  be  venerated 
wherever  the  flag  of  the  Union  shall  cast  its  shadow. 

Very  truly  yours, 

WILLIAM  WHITING, 
Solicitor  of  the  War  Department. 

WAR  DEPARTMENT,  Jan.  7,  1864. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  467 


[No.  10.] 

LETTER  RELATING  TO   CLAIMS  AGAINST   THE 
GOVERNMENT. 

WAR  DEPARTMENT,  WASHINGTON  CITY,  January  15,  1864. 
HON.  ELIHU  B.  WASHBURN,  U.  S.  House  of  Representatives. 

SIR  :  Your  letter  of  the  13th  instant  has  been  received,  in  which  you  have 
requested  me  to  "  state,  if  consistent  with  my  views  of  public  duty,  the 
nature,  extent,  and  character  of  the  various  claims  which  have  come  to  my 
notice  against  the  government,  growing  out  of  the  loss  and  destruction  of 
property  during  the  present  rebellion  ;  and  also  to  make  any  general  sug 
gestions  on  the  subject  that  may  seem  proper." 

In  reply,  I  have  the  honor  to  state  that  a  great  variety  of  claims  have 
been  made  against  the  United  States,  growing  out  of  the  loss  or  destruction 
of  property  in  the  Southern  States.  Damages  have  been  claimed  by  loyal 
citizens,  who  have  always  resided  in  the  Northern  States,  for  real  estate 
situated  in  the  rebellious  districts,  and  taken  into  possession  of  the  Union 
troops  for  military  purposes,  as  for  quarters,  or  for  storage,  or  hospitals, 
barracks,  &c.  Damages  have  also  been  asked,  by  the  same  class  of  per 
sons,  for  personal  property,  as  cotton,  sugar,  flour,  horses,  mules,  wagons, 
agricultural  implements,  money  of  the  United  States,  money  of  the  Con 
federates,  hay,  grain,  corn,  and  all  kinds  of  forage ;  wood  for  burning,  and 
wood  cut  down,  but  not  removed  from  the  spot  when  cut,  and  damages 
for  crops  trampled  or  eaten  up  by  our  cavalry,  &c.  But  by  far  the  larger 
proportion  of  claims  is  made  by  persons  residing  in  the  disloyal  districts, 
for  every  species  of  real  and  personal  property,  alleged  to  have  been 
used,  injured,  seized,  or  destroyed  by  our  troops ;  for  fences  burned,  crops 
trampled  down  or  consumed  by  the  army,  horses,  mules,  beef  cattle  cap 
tured,  seized  and  taken  away  ;  money,  furniture,  and  household  articles 
lost  or  stolen ;  cotton  captured,  burned,  used,  lost,  or  damaged  by  dirt  or 
otherwise  in  the  use  of  it  for  military  or  naval  purposes.  Every  variety  of 
personal  property,  lawfully  captured  by  our  forces,  has  been  claimed,  or 
damages  have  been  .demanded,  for  its  use,  detention,  or  destruction. 
Rents  are  continually  requested  for  the  use  of  real  estate  seized  by  our 
troops  ;  property  which  has  been  condemned  as  lawful  prize  in  our  courts 
has  been  claimed,  or  its  value  in  damages.  And,  what  is  singular,  every 
claimant  purports  on  affidavits  to  be  a  loyal  citizen,  even  when,  in  some 
cases,  it  is  well  known  to  the  department  that  the  party  really  interested 
in  the  claim  is  actively  engaged  in  rebellion  at  the  time  the  claim  is  pre 
sented.  Respectable  gentlemen,  on  many  occasions,  act  as  claim  agents  on 
behalf  of  the  parties  interested. 


468  NOTES    TO    THE    FORTY-THIRD    EDITION. 

Often  it  happens  that  shift  is  made  in  the  title,  or  apparent  title,  of 
property,  in  order  that  the  party  making  the  application  may  be  deemed 
loyal.  And  were  we  to  regard  the  evidence  presented  to  this  department 
as  conclusive  on  the  question  of  loyalty,  it  would  be  doubtful  whether  there 
is,  or  ever  was,  a  disloyal  person  in  the  seceded  States.  Many  claims  have 
been  made  for  property  seized  in  attempts  to  violate  the  laws  regulating 
commerce  with  the  inhabitants  of  the  rebellious  States.  Few  if  any  instances 
have  occurred  of  claims  for  the  restoration  of  property  seized  in  transitu  on 
its  course  from  Maryland,  New  York,  or  other  States,  to  Virginia,  without 
being  accompanied  by  testimony  of  the  loyalty,  honesty,  and  high  character 
of  the  criminal,  even  where  he  has  been  arrested  and  caught  in  the  act  of 
violating  the  law.  Rebel  printing  offices  have  been  gutted  out;  secession 
houses  have  been  burned ;  arms  and  munitions  of  war  have  been  seized ; 
vessels  have  been  used,  seized,  or  captured  by  our  forces ;  railroads  have 
been  taken  for  military  use ;  their  rolling  stock  has  been  worn  out ;  tracks 
have  been  destroyed,  bridges  burned,  or  blown  up,  and  every  form  of 
devastation  and  destruction  has  been  inflicted  on  the  enemy's  property  by 
our  armies.  For  all  these  injuries,  the  inevitable  result  of  warlike  opera 
tions,  indemnity  is  demanded  of  the  government  by  persons  claiming  to  be 
loyal,  even  though  residing  in  the  districts  at  war  with  us.  Wherever  the 
armies  move,  they  scatter  broadcast  the  prolific  seed  which  will  ripen  into 
raids.  As  to  the  character  of  these  demands  upon  the  Treasury,  so  far  as 
known  to  me,  some  of  them  have  but  a  slight  foundation  in  fact,  many  are 
purely  fictitious,  and  a  large  proportion  of  them  has  been  exorbitant  and 
unreasonable.  Sometimes  the  amount  of  annual  rent  demanded  for  a  piece 
of  real  estate  is  equal  to  half  or  the  whole  of  its  value.  The  valuation  placed 
upon  many  articles  has  been  more  than  ten  times  their  real  worth;  and 
as  a  general  statement,  these  claims  are  of  so  gross  and  outrageous  a  char 
acter  as  to  stamp  them  as  fraudulent.  Although  some  claims  of  this  class 
are  fairly  stated,  yet  it  would  seem  as  though  it  were  thought  fair  game  by 
some  claimants  to  rob  the  Treasury  to  any  practicable  extent. 

In  answer  to  the  inquiry  as  to  the  amount  of  these  claims  which  have 
been  or  will  be  brought  against  the  government,  I  can  only  say  that  it  is 
impossible  to  ascertain  the  aggregate.  I  believe  that  hundreds  of  millions 
of  dollars  will  be  required  to  satisfy  these  demands.  If  it  were  now  under 
stood  that  they  were  allowed  and  promptly  settled  in  the  War  Department, 
and  paid  by  the  Treasury,  I  do  not  believe  that  wre  could  carry  on  the  war 
three  months  for  want  of  money  or  credit.  I  look  upon  the  army  of  claimants 
as  really  quite  as  formidable  to  the  government  as  the  army  of  rebels  ;  and 
if  this  great  and  impending  danger  is  not  looked  in  the  face,  and  promptly 
and  decisively  met  by  Congress,  I  shall  feel  a  diminished  confidence  in  the 
ultimate  preservation  of  our  national  honor. 

In  regard  to  all  claims  arising  in  the  rebellious  districts,  of  the  character 
above  described,  I  have  uniformly  refused  to  acknowledge  their  legal 


NOTES    TO    THE    FORTY-THIRD    EDITION.  469 

validity,  whether  the  claimant  is  loyal  or  otherwise.  I  have  not  felt  at 
liberty  to  waive  the  legal  right  of  the  government  to  act  according  to  its 
own  will  and  pleasure  in  recognizing  these  obligations.  The  question 
as  to  what  shall  and  \vhat  shall  not  be  conceded  to  persons,  whether  loyal 
or  disloyal,  friendly  or  hostile,  who  reside  in  those  parts  of  the  country 
now  in  rebellion,  is  a  question  of  public  policy  to  be  settled  by  Congress. 
Congress  may  or  may  not  assume  such  obligations.  If  they  should 
amount  to  hundreds  of  millions  of  dollars,  Congress  may  refuse,  by  recog 
nizing  them,  to  add  such  an  amount  to  our  national  debt;  but  if  they  should 
be  of  comparatively  trifling  amount,  a  different  policy  might  be  justified. 
Perhaps  the  time  has  not  yet  arrived  when  we  can  tell  what  is  best  to  be 
done ;  for  we  do  not  know  when  the  war  will  end,  what  will  be  the  amount 
of  our  debt,  nor  what  the  extent  of  the  demands  upon  our  national  resources. 
It  therefore  seems  to  me  that  we  ought  not  to  allow  any  court  or  tribunal 
to  pass  upon  this  class  of  claims  in  anticipation  of  the  action  of  Congress, 
however  small  the  amount  involved  may  be ;  and  the  government  ought  not 
to  commit  itself,  through  any  of  its  legislative  or  executive  departments,  or 
through  the  Court  of  Claims,  or  by  any  commissioners  or  other  functionaries, 
to  an  acknowledgment  of  the  validity  of  claims  of  persons  residing  or 
having  property  in  rebellious  districts  while  the  war  is  going  on. 
Very  respectfully,  your  obedient  servant, 

WILLIAM  WHITING. 

[No.  11.     Extract  from  the  Records  of  the  War  Department.] 

CORRESPONDENCE  WITH  HON.  G.  W.  JULIAN,  M.  C.,  RELATING 
TO  CONFISCATED  LANDS. 

WASHINGTON,  Feb  4,  1874. 
HON.  WILLIAM  WHITING. 

DEAR  SIR  :  The  committee  on  public  lands  of  the  House  of  Representa 
tives  would  be  much  obliged  for  your  views  as  to  the  best  policy  to  be  pur 
sued  by  the  government  in  dealing  with  confiscated  lands  in  the  rebel 
States,  and  lands  sold  for  non-payment  of  taxes.  Without  some  adequate 
legislation,  these  lands  must  fall  into  the  hands  of  speculators,  and  constitute 
a  land  monopoly  scarcely  less  to  be  deplored  than  slavery  itself.  The  par 
ticular  question  upon  which  your  views  are  sought  is  the  propriety  of  such 
legislation  as  shall  vest  these  lands  at  once  in  the  United  States,  subject 
them  to  our  land  system  as  other  public  lands,  and  parcel  them  out  in  suit 
able  homesteads  to  actual  settlers,  and  particularly  to  those,  whether  white 
or  black,  who  have  served  the  United  States  in  crushing  the  rebellion.  The 
committee  would  be  glad  to  have  your  opinion  or  any  suggestions  you  may 
have  to  offer  upon  any  other  question  connected  with  the  subject. 
Hoping  the  favor  of  a  reply,  I  am,  sir,  very  respectfully, 

GEORGE  W.  JU.LIAN, 

Chairman  of  Committee. 


470  NOTES    TO    THE    FORTY-THIRD    EDITION. 

SOLICITOR'S  OFFICE,  WAR  DEPARTMENT,  ) 
WASHINGTON  CITY,  Feb.  9,  1864.       $ 

To  the  Eon.   George  W.  Julian,   Chairman  of  the   Committee  on  Public 

Lands,  House  of  Representatives. 

SIR  :  Your  letter,  of  which  the  foregoing  is  a  copy,  has  been  received, 
and  in  reply  I  have  the  honor  to  submit  the  following  suggestions  for  the 
consideration  of  your  committee  :  — 

Public  Lands  as  a  Source  of  Revenue. 

From  the  origin  of  our  government  down  to  a  recent  period,  the  sale  of 
the  public  lands  has  been  a  constant  source  of  revenue.  But  now,  since 
settlements  have  been  made  upon  the  best  agricultural  districts,  and  sales 
have  been  effected  of  a  vast  extent  of  territory  not  yet  settled,  and  espe 
cially  since  the  enactment  of  homestead  laws,  the  remaining  lands  are  found 
to  be  of  comparatively  little  value.  While  the  exigencies  of  war  have  called 
for  extraordinary  expenditures,  our  revenue  from  lands  has  greatly  dimin 
ished.  Considerations  of  political  economy,  therefore,  should  lead  us  to 
ascertain  whether  there  are  other  lands  not  yet  exhausted,  which  the  country 
has  a  lawful  right  to  use  for  homesteads,  for  soldiers'  bounty,  and  for  sup 
plying  the  demands  of  immigration  ;  and  to  inquire  whether  financial  neces 
sity,  public  policy,  humanity,  and  the  re-establishment  of  peace  upon  a  last 
ing  basis,  do  not  call  on  you  to  use  or  dispose  of  those  lands  to  which  the 
United  States  have  acquired  or  may  acquire  title  by  reason  of  the  civil  war, 
in  such  manner  as  to  maintain  the  ability  of  the  government  to  carry  on  the 
war,  and  to  pay  its  expenses. 

Modes  of  acquiring  Title  by  the  United  States. 

There  are  several  modes  in  which  the  United  States  may  acquire  title  to 
lands  in  the  rebellious  districts  ;  and  among  them  are  these  :  — 

1.  By  confiscation  in  punishment  of  treason  or  of  other  crimes  under 
municipal  laws. 

2.  By  confiscation  as  a  right  of  war  under  the  laws  of  war,  by  military 
seizure,  or  by  processes  in  rem,  as,  for  instance,  by  processes  against  absen 
tees,  refugees,  &c.,  &c. 

3.  By  process  of  judicial  attainder  of  treason  (a  method  not  as  yet  au 
thorized  under  any  law  of  Congress). 

4.  By  sales  for  non-payment  of  taxes. 

Two  distinct  Lines  of  Policy  open  to  the  Government. 
There  are  two  distinct  lines  of  policy  by  which  our  legislation  on  this 
subject  may  be  governed. 

1.  That  which  treats  the  public  enemy  merely  as  belligerents,  having  a 
claim  only  to  the  rights  of  belligerents  against  the  United  States. 

2.  That  which  treats  them  as  subjects  of  municipal  statutes,  and  holds 
them  as  only  liable  to  the  penalty  of  violating  the  laws  by  engaging  in  civil 
war,  and  not  as  subject  to  the  disabilities  of  a  belligerent  public  eneir>y. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  471 

Uselessness  of  Municipal  Proceedings  for  Forfeiture. 
It  is  obvious  that  proceedings  in  the  nature  of  forfeitures  or  confiscations 
of  the  property  of  rebels  treated  merely  as  subjects  under  municipal  laws, 
as  administered  to  peaceful  citizens  under  the  guarantees  of  the  Constitu 
tion,  will  not  be  efficient  to  vest  in  the  United  States  the  titles  to  any  con 
siderable  amount  of  real  estates.  Statutes  of  limitation  will  soon  cut  off 
claims.  Trial  by  jury  will  prove  an  impassable  barrier  against  just  ver 
dicts  in  favor  of  the  government,  and  public  sentiment  in  rebellious  States, 
after  fighting  ceases,  will  place  the  claimant  to  lands  under  titles  by  forfeit 
ure  in  hazard  not  only  of  his  estate,  but  of  his  life. 

Proceedings  in  Eem. 

Procedures  against  the  real  estate  of  rebels  should  be  in  rem,  and  not  in 
personam.  The  title  should  be  vested  by  law  in  the  United  States,  by  the 
act  of  abandoning  the  land  in  the  seceded  States ;  and  no  claim  should  be  al 
lowed  to  be  set  up  to  it  by  any  public  enemy,  unless  under  such  terms  as  the 
government  or  the  President  should  prescribe  ;  as,  for  example,  on  con 
ditions,  — 

1.  That  the  claimant  shall  appear  in  person  to  make  his  claim  to  the  land, 
within  a  period  of  time  to  be  fixed  by  law. 

2.  That  he  shall  show  that  he  has  taken  no  part  in  the  rebellion  ;  or, 

3.  That  he  has  taken  and  recorded  the  oath  prescribed  in  the  President's 
amnesty  proclamation,  and  has  kept  it. 

Procedures  of  this  general  character  were  used  in  and  after  our  revolution, 
whereby  the  title  of  many  estates  were  passed  from  the  tories  to  the  govern 
ment  or  to  purchasers  under  the  government. 

Constitutional  Objections  answered. 

If  this  plan  is  objected  to  upon  the  ground  that  the  Constitution  provides 
that  no  person  shall  be  deprived  of  property,  &c.,  without  due  process  of  law, 
&c.,  &c.,  the  answer  is,  that  a  public  enemy,  a  belligerent,  has  no  right  against 
the  union  but  the  right  of  a  belligerent ;  and  having  sought  to  overthrow  our 
government  and  Constitution,  he  cannot  at  the  same  time  claim  rights  under  it. 
All  persons  residing  in  the  belligerent  States  are  in  law  public  enemies  ;  they 
and  their  personal  and  real  estate,  are  subject  to  the  rules  of  war,  and  there 
fore  they  may  be  killed  in  battle  or  expelled  from  the  country,  and  their  property 
may  be  captured  and  confiscated  at  the  pleasure  of  their  conqueror. 

(See  War  Powers,  Chap.  II.  See  Decision  of  the  Supreme  Court  in  the 
Prize  Cases,  2  Black's  Sup.  Court  Reports,  p.  635.) 

Other  Objections  answered. 

If  it  be  said  that  proceedings  in  rem  are  not  humane,  our  answer  is,  that 
true  humanity  consists  in  so  conducting  the  war  and  its  incidents  as  to  sub 
serve  in  the  end  the  greatest  good  of  the  greatest  number.  Tenderness  to 
heinous  guilt  may  be  cruelty  to  innocence.  The  whole  number  of  slave- 


472  NOTES    TO    THE   FORTY-THIRD    EDITION. 

owning  landholders,  as  compared  to  the  whole  population  of  the  slave  States, 
is  very  small ;  it  does  not  exceed  one  in  forty-eight.  Of  these,  probably  less 
than  one  half  will  be  subjected  to  the  laws  of  war.  Less,  therefore,  than  one 
man  in  one  hundred  will  suffer  the  loss  of  real  property  by  the  most  severe 
application  of  confiscation  or  sequestration  laws.  A  cry  against  the  severity 
of  confiscating  the  lands  of  an  entire  people  is  a  false  alarm,  since  if  the 
land  of  every  slaveholder  were  taken  away,  only  about  one  fiftieth  of  the  peo 
ple  would  be  affected.  And  if  these  lands  be  again  distributed  among  the 
people  by  permission  of  the  government  in  the  manner  herein  proposed,  the 
clamor  against  confiscation  will  appear  to  all  as  absurd  as  it  is  unfounded. 
Confiscation  will  then  operate  only  as  a  means  of  effecting  a  just  and  equitable 
distribution  of  public  lands  to  those  who  were  born  and  now  dwell,  or  may 
dwell,  upon  them. 

Whoever    seeks     to   overthrow    the     Government    thereby     renounces     all 

Claim  to  its  Protection. 

The  rights  of  slave-owning  landholders  who  are  now  in  rebellion  are,  under 
the  Constitution,  to  be  determined  by  the  laws  of  war.  The  laws  of  war  are 
constitutional  laws  in  time  of  war.  Our  forefathers  framed  a  government 
able  to  destroy  its  enemies  as  well  as  protect  its  friends.  And  one  of  the 
delusions  which  this  great  contest  is  destined  to  expose,  is  that  which  accords 
to  a  hostile  foe  the  rights  of  an  ally  or  of  a  friend.  If  an  incendiary  sets 
fire  to  a  house,  he  does  not  enter  its  burning  walls  for  shelter  against  the 
weather,  nor  can  those  who  are  struggling  to  destroy  a  government  at  the 
same  time  claim  its  protection.  This  effort  for  its  destruction  is  a  renuncia 
tion  of  all  claim  to  rights  guaranteed  by  it  in  time  of  peace  to  innocent 
citizens. 

The  Dictates  of  Statesmanship  and  of  Humanity. 
Whatever  may  be  the  legal  status  of  hostile  confederates,  and  whatever 
may  be  their  liabilities  under  the  laws  of  war,  there  is  no  doubt  that  it  is 
the  part  of  a  magnanimous  and  humane  people  to  so  use  its  belligerent 
rights  as  to  destroy  or  expatriate  only  irreconcilable  adversaries,  and  at  the 
same  time  to  protect  its  true  friends,  even  though  they  are,  in  the  eye  of  the 
law,  deemed  to  be  "  public  enemies."  The  exercise  of  the  rights  of  war  is 
the  only  shield  by  which  the  government  can  be  preserved,  while  loyal  men 
in  the  hostile  districts  are  protected  from  their  enemies  and  ours.  It  is  for 
tunate  for  this  country  that  there  are  no  limitations  in  the  Constitution  upon 
our  belligerent  rights  against  a  public  enemy,  even  though  that  enemy  con 
sist  of  persons  or  communities  who  once  owed,  and  still  owe,  allegiance  to  the 
United  States.  There  is  no  control  placed  by  the  Constitution  over  the  power 
of  Congress  to  pass  laws  as  to  captures  on  land  or  sea,  nor  as  to  lands  con 
quered  or  recovered  from  possession  of  public  enemies,  whether  those  ene 
mies  be  composed  of  subjects  owing  us  allegiance  or  aliens  residing  in  for 
eign  countries. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  473 

Conquest  of  Rebel  Subjects  gives  greater   Belligerent  Rights  than    Con 
quest  of  an  Alien  Enemy. 

The  conquest  of  a  public  enemy  occupying,  when  conquered,  lands  over 
which,  in  peace  and  in  war,  the  laws  of  the  United  States  rightfully  extend, 
gives  the  sovereign  power  effecting  that  conquest  a  far  more  complete 
dominion  over  the  territory  so  conquered,  and  over  the  inhabitants  thereof, 
than  would  result  from  the  conquest  of  a  foreign  country  peopled  by  aliens 
who  never  owed  allegiance  to  the  conqueror.  There  is  no  violation  of  the 
law  of  nations,  nor  of  the  laws  of  war,  in  putting  in  force  whatever  measures 
are  really  necessary  to  secure  victory,  and  the  legitimate  fruits  of  victory. 

What  the  United  States  gain  and  the  Rebels  lose  in  a  Civil  War. 
The  United  States  have,  by  civil  war,  lost  none  of  their  rights  over  the 
land,  or  over  the  inhabitants  thereof,  but  have  gained  the  power  to  put  in 
force  over  both,  the  laws  of  war,  and  are  released  thereby  from  obligation  to 
regard  any  of  those  privileges  of  the  public  enemy  which  would  have  be 
longed  to  them  under  our  Constitution  and  government,  if  they  had 
remained  peaceful  and  loyal  citizens.  The  enemy  have  escaped  no  obliga 
tions  to  the  United  States,  but  by  their  own  act  have  subjected  themselves 
to  the  loss  of  all  rights  under  the  government  or  against  it,  except  those 
which  may  be  conceded  to  them  as  belligerents.  All  further  privileges  given 
to  the  enemy,  such  as  are  contained  in  the  proclamation  of  amnesty,  cannot 
be  claimed  as  of  right,  but  must  be  received  as  a  magnanimous  concession 
made  for  the  protection  of  those  who  will  aid  in  supporting  our  government 
and  restoring  it  to  power. 

Property  of  Malignant  Enemies  refusing  Amnesty  should  be  confiscated. 
There  is  therefore  nothing  against  the  dictates  of  humanity,  the  laws  of 
war,  the  provisions  of  the  Constitution,  or  true  policy,  in  pursuing  the  course 
of  confiscation,  municipal  or  military,  against  malignant  slave-owning  land 
holders,  whose  hands  are  red  with  the  blood  of  our  sons  and  brothers,  if 
they  refuse  to  accept  the  amnesty  offered  by  the  President.  The  humanity 
of  a  great  nation  has  offered  amnesty  to  public  enemies  while  yet  engaged 
in  hostilities.  Justice  will  enforce  confiscation  and  exile  on  all  who  will  not 
accept  pardon  and  submit  to  the  laws. 

Title  to  Lands  of  great   Value,  will  be  vested  in  the  United  States. 
The  use  to  be  made  of  them. 

If  lands  belonging  to  this  class  of  enemies  shall  be  promptly  seized  by 
our  military  forces,  and  faithfully  applied  to  the  public  benefit,  a  vast  amount 
of  territory  will  be  added  to  the  public  domain,  and  the  country  will  have 
in  its  own  hands,  after  the  war  is  over,  the  means  of  carrying  out  magnifi 
cent  schemes  of  public  improvement,  and  of  securing  to  the  southern 
country,  for  the  first  time,  the  benefits  of  civilization.  The  admirable  cli- 

60 


474  NOTES    TO    THE    FORTY-THIRD    EDITION. 

mate,  the  fertile  soil,  the  mineral  and  agricultural  wealth  of  the  Southern 
States  would  make  each  one  of  them  worth  far  more  than  a  Mexico  to  the 
Union,  provided  only  that  no  impediment  should  retard  or  prevent  the 
development  of  its  industrial  resources. 

Amendment  of  the  Constitution  abolishing  Slavery.     Its  Effect  on 
Public  Lands. 

It  is  now  conceded  that  slavery  has  been  the  cause  of  the  war  ;  that  it 
constitutes  the  means  by  which  it  is  sustained ;  that  it  is  the  chief  obstacle 
to  the  restoration  of  the  Union  ;  and  that  slavery  is  to  be  removed.  It  has 
long  been  the  wish  of  eminent  and  patriotic  statesmen,  that  the  Constitu 
tion  of  the  United  States  should  be  so  amended  as  to  exclude  involuntary 
servitude  forever  from  the  States  and  Territories,  except  in  punishment  of 
crime.  And  it  is  believed  that  this  great  measure  will  be  proposed  by  Con 
gress,  and  accepted  by  the  people,  within  a  few  months.  In  this  event,  the 
subject  of  public  lands  will  become  still  more  important,  and  will  press  for 
immediate  legislative  action. 

Large  Estates  must  be  divided.  The  Reasons  for  so  doing. 
Whether  this  measure  be  adopted  sooner  or  later,  it  is  necessary  that  the 
large  landed  estates  in  the  South,  which  shall  become  the  property  of  the 
United  States,  should  be  broken  up  into  farms  of  moderate  size,  and  be 
distributed  among  those  having  claims  to  the  protection  of  government. 
Large  estates  in  land  are  essential  to  the  perpetuation  of  slaveholding  aris 
tocracy,  and  of  slavery  itself.  They  furnish  the  means  of  reducing  and  of 
retaining  a  numerous  but  degraded  population  under  the  control  of  a  small 
number  of  capitalists.  Proprietorship  of  the  soil  renders  all  tenants  sub 
servient  to  the  will  and  subject  to  the  control  of  the  owner.  Estates  of 
inordinate  size  retard  and  exclude  internal  improvements.  It  is  also  well 
known  among  agriculturists  that  very  large  farms  are  wasteful  and  com 
paratively  unproductive.  Subdivision  increases  productiveness.  Villages 
are  scarcely  possible  when  many  large  estates  are  contiguous.  Without 
villages,  the  country  lags  in  its  progress.  The  proprietor  of  large  planta 
tions,  peopled  by  slaves  and  by  poor  whites  more  degraded  than  slaves,  be 
comes  a  feudal  lord,  while  his  subjects  are  deprived  of  feudal  rights ;  and 
such  a  petty  sovereignty  does  not  educate  the  master  to  become  a  patriotic 
and  peaceful  citizen  of  a  republican  form  of  government.  Lands  descend 
ing  in  the  same  family  for  several  generations  perpetuate  a  quasi  feudal 
aristocracy,  wherever  the  lords  of  the  land  inherit  the  subjects  from  whose 
toil  it  derives  its  value.  The  history  of  the  states  of  South  America,  and 
especially  of  Mexico,  where  some  of  the  proprietors  own  lands  greater  in 
extent  than  two  or  three  of  the  smaller  States  in  our  Union,  might  well  de 
monstrate  the  impossibility  of  preserving  a  permanent  republican  govern 
ment  over  the  proud,  independent,  selfish,  turbulent,  vindictive,  and  revolu- 


NOTES    TO    THE    FORTY-THIRD    EDITION.  475 

tionary  spirits  engendered  by  the  inordinate  accumulation  of  real  estate  in 
the  hands  of  an  oligarchy,  even  without  the  aggravating  evils  of  slavery. 

Speculators. 

The  destruction  of  slavery  in  the  Southern  States  will  not  remove  these 
evils,  so  unavoidable,  yet  so  deplorable.  Negroes  and  poor  whites  hired  to 
labor  on  large  plantations  will  suffer  as  severely  from  their  employers  as 
from  slaveholding  masters.  Following  the  army,  like  crows  after  the  bat 
tles,  speculators  are  going  south  to  purchase  farms  in  the  new  Eldorado. 
They  will  have,  to  some  extent,  the  control  of  negroes  found  there,  even 
though  they  may  hire  laborers.  They  will  prove  a  curse  to  the  country  and 
a  curse  to  the  negroes.  Men  of  grasping  avarice,  who  have  no  interest  in  pro 
tecting  the  life  or  health  of  their  employes,  will  be  far  more  unrelenting 
than,  slave-owners  who  have  an  interest  in  preserving  what  they  claim  as 
property.  Experience  in  Tennessee  and  other  States  has  already  demon 
strated  that  the  negroes  suffer  more  under  lessees,  who  are  determined 
to  get  rich  in  a  hurry  by  raising  cotton,  than  they  formerly  suffered  from 
their  selfish  masters.  It  is  shocking  to  learn  that  Union  men,  as  specula 
tors,  are  allowed  to  drive  their  laborers  to  unwonted  activity  in  the  field, 
and  yet  to  withhold  from  them  fair  wages.  To  deprive  this  hard-hearted 
class  of  men  of  the  temptation  of  buying  great  estates  for  the  purpose  of 
levying  black  mail  upon  the  first  earnings  of  freedmen,  it  is  only  necessary 
to  require  the  lands  to  be  leased  or  sold  in  small  sections,  and  to  actual 
settlers. 

Other  Reasons  why  the  Land  should  be  subdivided  into  small  Sections. 

There  is  but  one  way  of  recalling  the  common  people  of  the  South,  who 
are  non-slaveholders,  to  a  hearty  and  honest  support  of  the  Union  ;  and 
that  is,  by  making  the  population  of  all  parts  of  the  country  homogeneous. 
Small  farms,  free  labor,  diversity  of  occupations,  general  education,  north 
ern  institutions,  republican  and  not  aristocratic  ideas  of  the  respectability 
of  honest  industry,  the  substitution  of  cheerful  and  hopeful  productive 
labor  in  place  of  listless  southern  indolence,  the  thrift  of  profitable  energy 
instead  of  the  wasteful  extravagance  of  unpaid  toil,  the  exchange  of  the 
slave-driver's  lash  for  the  spur  of  self-interest,  and  of  the  slave-pen  for  the 
school-house,  will  produce,  in  a  few  years,  a  revolution  more  wonderful  than 
all  the  hard-fought  battles  of  this  civil  war. 

The  Lesson  of  History  that  the  Restoration  of  the  Union  will  be  one  of 
the  Victories  of  Peace. 

History  records  in  all  ages  the  same  lesson.  The  first  conquest  is  of 
arms  ;  the  last  is  that  of  arts.  The  triple  wall  of  slavery,  rebellion,  and 
treason  has,  until  now,  kept  out  from  the  Southern  States  the  rising  tide 
of  knowledge  and  of  progress.  Its  swelling  waters,  long  baffled,  have  at 


476  NOTES    TO    THE    FORTY-THIRD    EDITION. 

last  broken  through  and  over  the  dikes,  and  its  crested  waves,  sparkling 
with  phosphorescent  light,  are  now  dashing  southward,  sweeping  away,  in 
their  irresistible  movement,  the  ancient  landmarks  of  barbarism  and  crime. 
When  these  fertilizing  waters,  having  once  deluged  the  land,  shall  have 
dried  up,  the  hills  and  valleys  of  the  South,  purified  and  purged  of  all  the 
guilt  of  the  past,  clothed  with  a  new  and  richer  verdure,  will  lift  up  their 
voices  in  thanksgiving  to  the  Author  of  all  good,  who  has  granted  to  them, 
amidst  the  agonies  of  civil  war,  a  new  birth  and  a  glorious  transfiguration. 
Then  the  people  of  the  South  and  the  people  of  the  North  will  again  be 
come  one  people,  united  in  interests,  in  pursuits,  in  intelligence,  in  religion, 
and  in  patriotic  devotion  to  their  common  country.  Whatever  may  con 
tribute  to  that  result  will  be  sanctioned  by  Christians  and  by  statesmen. 

The  Missionaries  of  Liberty. 

If  soldiers  who  have  fought  for  the  flag  on  many  a  Southern  battle-field ; 
if  emigrants,  who  bear  with  them  a  love  of  liberty,  made  more  intense  by 
the  oppression  of  foreign  tyrants  ;  if  Northern  farmers,  manufacturers,  and 
merchants  bred  in  the  school  of  freedom,  shall  seek  their  homes  in  South 
ern  States,  as  they  doubtless  will,  encouraged  and  protected  by  manly 
legislation  of  Congress,  the  seed  of  liberty  will  by  them  be  sown  broadcast 
over  the  South.  The  institutions  of  the  North  will  be  established  by  every 
emigrant  and  every  soldier  wherever  he  plants  his  hearth-stone.  Slavery 
being  once  abolished,  there  will  be  no  backward  movement  in  civilization ; 
free  labor,  having  a  fair  field,  is  sure  to  win. 

Small  Farms  are  Pledges  of  the  Perpetuity  of  the  Union. 
If  the  southern  lands  which  shall  belong  to  the  United  States  be  divided 
into  small  farms,  and  owned  by  a  large  number  of  proprietors,  every  one 
of  them  will  hold  his  homestead  under  title  from  the  United  States.  Each 
proprietor  will  thus  become  bound  to  maintain  the  government.  His  home 
stead  will  be  pledged  by  bond  and  mortgage  to  perpetuate  the  Union. 
Every  farm  will  be  Union  stock.  It  will  be  a  guarantee  of  the  credit  and 
good  faith  of  the  country.  It  will  secure  in  the  South  all  the  benefits  of 
the  credit  mobilier,  or  of  the  circulation  of  governmental  currency.  The 
larger  the  number  of  persons  owning  the  same  amount  of  land,  the  stronger 
is  the  government  in  the  number  of  its  indorsers.  Such,  then,  are  some 
of  the  reasons  why  the  lands  of  the  United  States  in  the  rebellious  dis 
tricts  should  be  subdivided  into  small  homesteads. 

What  may  be  done  with  Homesteads. 
These  lands,  thus  subdivided,  are  wanted  for  four  important  objects. 

1.  For  bounties  to  soldiers  who  have  been  in  active  service,  and  to  the 
widows  or  heirs  of  those  who  have  perished  therein. 

2.  For  homesteads  for  persons,  of  whatever  color,  who,  while  the  war 
continues,  or  after  it  is  over,  may  be  found  resident  thereon. 


NOTES    TO    THE    FORTY-THIRD    EDITION.  477 

3.  For  homesteads  for  those  who  shall  emigrate  southward. 

4.  These  lands,  not  wanted  for  bounties  or  for  homesteads,  or  the  pro 
ceeds  thereof,  should  be  pledged  for  and   applied  to  the  extinction  of  the 
war  debt. 

Property  abandoned  by  or  taken  from  those  who  instigated  the  war 
should  be  appropriated  to  pay  its  expenses. 

Freedom  from  Slaves,  and  Equalization  of  National  Taxes. 
If  the  issue  be  put  to  the  people,  Shall  the  South  retain  slavery  and  the 
North  pay  nearly  all  the  taxes,  or  shall  the  South  give  up  slavery  and  the 
North  pay  its  just  share  of  the  taxes  ?  there  can  be  no  doubt  about  the 
verdict. 

A  Principle  of  Political  Economy. 

To  abolish  slavery  and  cut  up  the  lands  of  those  slaveholders  who  will 
not  accept  the  amnesty,  and  to  distribute  them  as  above  suggested,  would 
benefit  the  South  even  more  than  the  North.  For  in  a  few  years,  the  pro 
ductiveness  of  the  lands  would  be  enormously  increased  by  reason  of  im 
provements  in  agriculture,  and  by  the  conversion  of  eight  millions  of  south 
ern  white  men  into  producers,  who  are  now  only  consumers  of  the  products 
of  the  labor  of  four  millions  of  slaves.  To  add  such  a  vast  source  of 
wealth  as  this,  will  do  more  to  develop  and  increase  our  wealth  and  our 
resources  than  the  discovery  of  hundreds  of  mines  of  silver  or  of  gold. 
This  result  of  converting  consumers  into  producers,  interested  in  the 
perpetuity  of  our  government,  elevated  in  civilization,  and  with  feelings  so 
changed  as  to  make  them  loyal  citizens,  is  to  be  accomplished  only  by  in 
troducing  among  them  northern  improvements,  northern  institutions,  and 
northern  men  to  put  them  in  practice.  This  end  can  be  accomplished  only 
by  so  managing  the  lands  of  the  South  as  to  render  these  great  move 
ments  practicable. 

Seizure  of  Lands.     Bureau  of  Industry.     Land  Office  System. 

The  first  step  in  this  direction  is  to  seize  the  lands,  and  to  acquire  title 
as  rapidly  as  possible. 

The  second  step  is,  to  place  them  in  charge  of  proper  persons,  under  the 
authority  of  the  United  States.  (This  is  to  be  provided  for  by  the  bill  for 
an  Emancipation  Bureau.) 

The  third  step  is  to  have  the  land  system  extended  over  these  districts. 

For  without  this  precaution,  there  will  be  disputes  as  to  proprietorship ; 
disputes  as  to  boundary ;  disputes  as  to  titles  of  traitors  and  their  agents ; 
claims  for  indemnity  ;  disputes  as  to  the  application  of  the  Amnesty  Procla 
mation  ;  and  an  interminable  train  of  difficulties. 

The  Land  System. 

By  applying  to  the  southern  plantations  the  land  system,  the  titles  can 
be  given  and  guaranteed  directly  by  the  United  States.  These  titles  will  be 


478  NOTES    TO    THE    FORTY-THIRD    EDITION. 

reliable,  and  held  sacred.  The  security  of  title  will  enhance  the  value  of  the 
lands  for  lease  or  for  sale ;  and  the  government  can,  through  its  land  officer, 
keep  a  correct  account  of  all  that  is  done  with  its  property,  and  account  for 
the  proceeds  thereof,  and  keep  a  register  of  loyal  and  disloyal  men.  If  gen 
eral  laws  are  made,  regulating  the  use  or  appropriation  of  such  lands,  these 
laws  can  be  best  carried  into  effect  by  the  Land  Office,  and  its  surveys  will 
be  conclusive,  both  as  to  location  of  lots,  and  its  grants  or  warrants  may 
be  made  conclusive  as  to  validity  of  title.  By  regulations  of  the  Land 
Office,  speculators  can  be  kept  off,  settlers,  soldiers,  and  emigrants  can  be 
protected  most  effectually.  Considering  all  these  things,  it  seems  advisable 
that  the  land  system  of  the  United  States  should  be  extended  to  all  such 
estates  as  vest  in  the  United  States  as  rapidly  as  possible.  The  disposition 
of  these  lands  may  be  placed  in  the  control  of  the  chief  of  the  Emanci 
pation  or  Industrial  Bureau.  And  it  is  desirable  that  lands  of  great  value 
should  not  be  sold,  as  they  now  are,  for  nominal  prices,  but  that  Congress 
should  so  legislate  that  these  estates  may  be  held  for  the  benefit  of  the 
United  States,  or  for  such  uses  as  they  may  be  applied  to  hereafter  by  law.* 
I  am,  Sir,  very  respectfully, 

WILLIAM  WHITING, 
Solicitor  of  the  War  Department. 

[No.  12.     See  page  20.] 
LAWS  FOR  RAISING  AND   ORGANIZING  MILITARY  FORCES. 

u  The  United  States  may  require  all  Subjects  to  do  Military  Duty." 
The  manner  in  which  this  power  has  been  used  by  the  government  may  be 
seen  by  reference  to  the  acts  of  Congress  under  which  the  military  forces  of 
the  United  States  have  been  authorized  to  be  called  into  service  since  the 
commencement  of  our  civil  war.  Soon  after  the  rebellion  broke  out,  the 
President,  by  virtue  of  the  power  conferred  upon  him  in  the  act  of  Congress 
approved  February  28,  1795,  called  forth  the  militia  of  the  several  States 
of  the  Union,  to  the  aggregate  number  of  seventy-five  thousand  men,  by 
proclamation  dated  April  15,  1861.  On  the  3d  day  of  May,  1861,  under  the 
provisions  of  the  same  statute,  he  called  into  the  service  of  the  United  States 
forty-two  thousand  and  thirty-four  state  militia  as  volunteers,  and  directed 
an  increase  of  the  regular  army  to  the  extent  of  twenty-two  thousand  seven 
hundred  and  fourteen  officers  and  men.  By  the  act  of  July  22,  1861,  the 
President  was  authorized  to  accept  volunteers,  not  exceeding  five  hundred 
thousand  men,  and  by  the  act  of  July  25,  1861,  Chap.  17,  he  was  further 
authorized  to  receive  any  number,  not  exceeding  five  hundred  thousand  men, 
to  be  organized  according  to  the  preceding  act,  and  to  be  mustered  in  for 

*  How  far  the  policy  recommended  in  this  letter  has  been  approved  by  Congress  may 
be  seen  by  examination  of  the  Freedmen's  Bureau  Act  of  July  16,  I860,  Chap.  200. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  479 

"  during  the  war."  No  volunteers  have  been  received  under  this  law.  The 
act  of  July  29,  1861,  Chap.  25,  authorized  the  President  to  call  forth  the 
militia  of  any  or  of  all  the  States,  and  to  employ  such  part  of  them  as  he 
should  deem  necessary ;  and  it  further  provided  "  that  the  militia  so  called 
into  the  service  of  the  United  States  shall  be  subject  to  the  same  rules 
and  articles  of  war  as  the  troops  of  the  United  States,  &c.,  and  that  their 
service  shall  not  extend  beyond  sixty  days  after  the  commencement  of  the 
then  next  session  of  Congress,  unless,  &c.,  and  that  the  militia  so  called  into 
the  service  shall  be  entitled  to  the  same  pay,  &c.  as  the  regular  army.  The 
President  was  authorized,  by  act  of  July  31,  1861,  in  accepting  the  services 
of  volunteers  under  the  act  of  July  22,  1861,  to  accept  the  same  without 
previous  proclamation,  and  in  such  numbers  from  any  state,  as,  in  his  dis 
cretion,  the  public  service  should  require. 

Although  the  right  claimed  in  this  essay,  on  behalf  of  the  government,  to 
call  upon  all  its  subjects,  whether  white  or  black,  bond  or  free,  to  do  military 
duty,  was  unquestionable,  yet,  in  fact,  colored  men  were  at  that  time 
excluded  by  law  from  the  regular  army  and  from  the  militia  of  the  States. 

To  understand  the  operation  of  the  statutes  by  which  colored  men  and 
slaves  were,  until  1862,  prevented  from  belonging  to  the  regular  army,  the 
reader  should  observe,  that  the  act  of  April  24,  1816  (Chap.  69  section  9), 
provides  "  that  the  regulations  [of  the  army]  in  force  before  the  reduction 
of  the  army  be  recognized  so  far  as  the  same  shall  be  found  applicable  to 
the  service  ;  subject,  however,  to  such  alterations  as  the  Secretary  of  War 
may  adopt,  with  the  approbation  of  the  President."  "  Under  this  authority  " 
(says  Attorney  General  Gushing  in  his  opinion  dated  April  5,  1853)  "  it  is 
that  the  subsisting  regulations  for  the  army  have  legal  effect."  The  army 
regulations  have  been  repeatedly  recognized  by  Congress,  and  never  more 
frequently  than  during  the  recent  rebellion.  That  they  have  the  force  of 
law  the  Supreme  Court  of  the  United  States  Has  several  times  decided. 
(See  Gratiot,  v.  United  States,  4  How.  117.) 

On  the  10th  of  August,  1861,  new  regulations  for  the  army  were  approved 
and  issued,  and  "  ordered  by  the  President  of  the  United  States  to  be 
strictly  observed  as  the  sole  and  standing  authority  upon  the  matters  therein 
contained."  Of  these  regulations  as  to  the  persons  who  could  be  enlisted 
in  the  army,  No.  929  reads  as  follows  :  — 

"  Any/ree  white  male  person  above  the  age  of  eighteen  and  under  the 
age  of  thirty-five,  being  at  least  five  feet  three  inches  high,  effective,  able- 
bodied,  sober,  free  from  disease,  of  good  character  and  habits,  and  with  a 
competent  knowledge  of  the  English  language,  may  be  enlisted,"  &c. 

And  this  regulation  was  substantially  the  same  as  had  been  in  force  for 
many  years  previous  to  that  time.  It  was  not  forbidden  by  any  law  of  the 
United  States,  and  it  continued  in  force,  beyond  question,  until  July,  1862  ; 
and  whether  and  to  what  extent  it  was  then  altered  will  be  presently  con 
sidered.  Thus  it  is  seen  that  by  statute  and  by  regulations  of  the  War 


480  NOTES    TO    THE   FORTY-THIRD    EDITION. 

Department,  made  under-authority  of  that  statute  existing  and  in  force  from 
the  year  1816  down  to  1862,  no  other  than  free  white  persons  could  be  en 
listed  in  the  army  of  the  United  States  as  soldiers.  That  the  rules,  so  ex 
cluding  colored  men,  were  severely  enforced  under  former  administrations, 
is  shown  by  the  well-known  fact  that  persons  who  had  been  enlisted  in  the 
army,  and  who,  after  enlistment,  were  suspected  of  having  African  blood  in 
their  veins,  have  been  subjected  to  trial  by  military  commissions,  and  upon 
proof  that  they  were  of  African  descent,  have  been  dismissed  from  the  ser 
vice,  because  such  enlistment  was  contrary  to  law.  As  a  large  proportion 
of  officers  in  the  regular  army,  before  the  war,  were  slaveholders  or  natives 
of  slaveholding  States,  and  as  the  government  had  been  for  many  years  prior 
to  the  rebellion  administered  in  the  interests  and  in  accordance  with  the 
prejudices  of  slaveholders,  it  would  indeed  have  been  surprising  to  find 
slaves  and  negroes  admitted  by  law  to  an  equality  with  white  men  in  the 
regular  army  as  soldiers  or  as  officers. 

Colored  men  and  slaves  were  also  excluded,  by  the  law  of  Congress,  from 
the  militia  of  the  States. 

None  but  free  white  persons  could  lawfully  be  enrolled  in  the  militia  of 
either  of  the  several  States  from  1792  down  to  1862.  To  ascertain  who 
could  not  constitute  a  part  of  the  militia  of  either  of  the  States,  it  is  not 
necessary  to  examine  the  statutes  of  the  respective  States,  because,  pre 
viously  to  the  war,  it  had  been  settled  by  the  Supreme  Court  of  the  United 
States  that  State  legislatures  could  not  constitutionally  provide  for  the  enrol 
ment  in  the  militia  of  any  persons  other  than  those  enumerated  in  the  act 
of  Congress  of  May  8,  1792.*  This  act,  which  continued  in  full  force  until 
July,  1862  (and  how  much  longer  it  is  not  now  important  to  determine), 
defined  who  should  and  who  should  not  be  deemed  by  law  as  in  the  militia 
of  the  several  States,  viz.,  "  Each  and  every  free,  able-bodied,  white  male 
citizen  of  the  respective  States  who  is  or  shall  be  of  the  age  of  eighteen 
years,  and  under  the  age  of  forty-five  years,  shall  severally  and  respectively 
be  enrolled  in  the  militia  by  the  captain  or  commanding  officer  of  the 
company  within  whose  bounds  such  citizen  shall  reside,"  &c.  No  person 
other  than  those  thus  designated  could  by  law  be  enrolled  as  part  of  the 
rnilitia  of  any  State ;  therefore  no  colored  man  and  no  slave  could  lawfully 
have  been  enrolled  as  a  member  of  the  militia  of  any  State,  so  long  as  the 
statute  by  which  they  had  been  excluded  remained  in  force.  Such  was  the 
law  down  to  July  17,  1862.  Prior  to  that  time  no  colored  man  or  slave 
could  lawfully  enter  the  service  of  the  United  States  either  by  enlistment 
in  the  regular  army  or  by  volunteering  in  the  militia  of  any  State  in  the 
Union.  It  is  well  known  that  General  McClellan,  under  this  state  of  the 
law  has  discharged  from  the  volunteer  forces  a  person  who,  though  enlisted 

*  18  Am.  Law  Rep.  167,  172. 
22  Law  Rep.  477. 
See  also  Opinions  of  William  Wirt,  Attorney  General. 


NOTES    TO    THE   FORTY-THIRD    EDITION.  481 

as  a  white  man,  afterwards  was  proved  to  have  some  African  blood,  and 
assigned,  in  a  written  order,  his  African  descent  as  the  reason  for  his 
discharge.  Similar  discharges  for  the  same  cause  had  been  previously- 
made  from  the  regular  army.  All  applications  of  colored  men,  including 
mulattoes,  for  permission  to  enlist  as  volunteers,  have  been  uniformly 
refused  by  the  Adjutant  General  of  the  United  States,  prior  to  July  17,  1862. 

In  accordance  with  the  statutes  and  the  rules  and  regulations  of  the  vol 
unteer  service  as  administered  by  the  President,  by  the  War  Department,  and 
by  all  officers  acting  under  it,  slaves  and  colored  persons  were  uniformly 
excluded  from  the  military  service  of  the  United  States  until  the  passage  of 
the  militia  act  of  1862. 

In  July,  1862,  two  important  statutes  were  approved,  which  authorized  the 
President  to  employ  persons  of  African  descent. 

The  Confiscation  Act,  which  was  introduced  into  Congress  in  May,  1862, 
and  finally  was  passed  July  17,  1862  (Chap.  195),  was  entitled  "  An  Act  to 
suppress  insurrection,  "to  punish  treason  and  rebellion,  to  seize  and  confiscate 
the  property  of  rebels,  and  for  other  purposes."  It  provides,  in  Section  9, 
that  all  slaves  of  rebels  or  their  abettors,  who  should  escape  and  come  into 
our  lines,  all  slaves  captured  from  or  deserted  by  them,  and  all  slaves  found 
on  or  within  any  place  occupied  by  rebels,  and  afterwards  occupied  by  our 
forces,  should  be  deemed  captives  of  war,  and  should  be  made  free. 

Section  10  provides  that  escaped  slaves  should  not  be  surrendered  to  their 
master  unless  he  would  make  oath  of  ownership,  loyalty,  &c.,  and  that  mili 
tary  men  should  not  pass  judgment  on  the  rights  or  claims  of  masters  under 
the  fugitive  slave  acts. 

Section  11  provides  that  "  The  President  of  the  United  States  is  authorized 
to  employ  as  many  persons  of  African  descent  as  he  may  deem  necessary 
and  proper  for  the  suppression  of  this  rebellion ;  and  for  this  purpose  he  may 
organize  and  use  them  in  such  manner  as  he  may  judge  best  for  the  public 
welfare." 

Section  12  provides  for  colonizing  such  persons  of  the  African  race  as  may 
be  made  free  by  this  act,  and  as  may  desire  to  emigrate. 

No  provision  is  made  in  this  statute  for  the  payment  of  such  persons  as  the 
President  might  thus  "  use  ;  "  but  provision  for  keeping  just  account  of  their 
work,  with  a  view  of  ultimately  paying  reasonable  wages,  was  made  by  his 
general  order.  Although  freed  captives  of  war,  of  whatever  sex  or  condition, 
might  be  employed  for  the  general  purpose  of  "  suppressing  the  rebellion," 
no  permission  is  contained  in  the  act  to  use  or  employ  persons  of  African 
descent  as  soldiers,  unless  the  use  of  these  persons  "  for  suppressing  the 
rebellion  "  necessarily  implies  that  they  may  volunteer  in  the  army  as  soldiers. 
If  this  phrase,  "  to  use  for  the  suppression  of  rebellion,"  stood  alone,  and 
if  there  were  no  other  laws  or  statutes  of  Congress,  no  decisions  of  the  Su 
preme  Court,  no  rules  of  the  War  Department  which  have  the  force  of  law, 
no  message  of  the  President,  no  general  orders  of  the  Commander-in-Chief, 

61 


482  NOTES    TO    THE    FORTY-THIRD    EDITION. 

and  if  there  had  been  no  debates  in  Congress,  most,  if  not  all,  of  which  are 
irreconcilable  with  this  construction  of  the  meaning  and  intent  of  Congress 
in  passing  this  statute,  this  view  of  its  interpretation  might  be  adopted. 
But  these  statutes,  decisions,  rules,  debates,  message,  and  general  orders 
place  it  beyond  question  that  such  an  interpretation  of  this  act  cannot  be 
sustained.  Those  who  were  to  be  "  used  "  for  the  "  suppression  of  the  re 
bellion  "  might  be  employed  in  camps,  trenches,  and  fortifications,  as  laborers, 
cooks,  servants,  washerwomen,  or  as  agricultural  laborers  in  and  around  forts 
and  military  posts. 

The  fact  that  any  and  all  labor  or  assistance  which  could  be  withdrawn 
from  the  rebels  and  transferred  to  the  government  weakened  the  enemy,  in 
creased  our  own  resources,  and  therefore  tended  to  "  suppress  the  rebellion," 
affords  satisfactory  evidence  that  "  employment  for  the  purpose  of  suppressing 
the  rebellion  "  does  not  necessarily  imply  fighting  as  soldiers.  Therefore  the 
true  meaning  of  the  phrase  must  be  sought  for  by  an  examination  of  the 
system  of  military  laws  of  which  this  act  constitutes  a  part,  and  cannot  be 
truly  construed  as  if  no  other  laws  and  no  other  parts  of  this  statute  were 
in  force. 

It  will  also  be  observed  that  no  distinction  as  to  the  persons  to  be  em 
ployed  by  the  President  is  made  between  males  and  females,  old  and  young, 
able-bodied  and  crippled.  Hence  it  is  not  necessary,  if  it  be  reasonable,  to 
construe  this  act  as  having  application  to  the  military  service.  It  is  obviously 
intended  to  enable  the  President  to  give  employment  to  "  contrabands"  and 
"  captives  of  war  "  by  using  them  in  such  way  as  will,  by  withdrawing  their 
labor  from  the  rebels,  tend  to  suppress  the  rebellion  by  weakening  the  enemy 
and  strengthening  us.  Some  mode  of  "  regulating  "  large  numbers  of  men, 
women,  and  children  was  necessary  to  secure  order,  industry,  and  peace  ; 
therefore  the  power  was  given  to  "  organize  "  them.  The  contraband  camp 
at  Arlington  afforded  a  fair  example  of  an  "  organization  "  for  agricultural 
purposes ;  and  it  is  fortunate  that  the  Arlington  establishment  was  able  to 
pay  its  own  expenses,  —  no  provision  having  then  been  made  by  this  or  by 
any  other  statute  to  support  any  "  organization  "  by  money  to  be  drawn  out 
of  the  treasury.  That  this  act  was  not  intended  to  authorize  the  systematic 
introduction  of  the  persons  therein  named  into  the  military  service  as 
soldiers,  is  obvious  to  every  student  of  military  law,  inasmuch  as,  1.  No 
distinction  is  made  between  sexes  or  ages,  and  no  limit  is  given  to  the 
number  of  individuals  to  be  employed.  2.  The  authority  to  the  President 
is  to  employ  these  persons  and  use  them  in  such  .manner  as  he  judges  to 
be  for  the  public  welfare.  Giving  them  "  employment "  and  "  using  them," 
without  referring  in  any  way  to  military  service,  is  language  unlike  any 
adopted  before  or  since  in  any  law  of  Congress  which  has  reference  to  the 
raising  of  soldiers.  3.  No  provision  is  found  in  this  act  requiring  those  who 
are  to  be  used  to  be  able-bodied,  or  to  have  any  single  quality  of  a  soldier. 
4.  No  period  of  service  is  limited  by  law.  No  compensation,  bounty,  pension, 


NOTES    TO    THE    FORTY-THIRD    EDITION.  483 

monthly  pay,  or  rations,  are  provided,  or  even  referred  to,  by  the  statute. 
o.  The  employes  are  not  called  or  treated  as  "  volunteers,"  or  required  to 
"  enlist,"  or  to  be  "  enrolled,"  nor  to  be  "  mustered  in  "  or  "  mustered  out " 
of  service.  They  were  not  designated  as  any  part  of  the  military  forces 
of  the  United  States.  6.  Although  it  was  generally  conceded  by  just  men, 
that  slaves,  who  were  willing  to  fight  for  their  country,  ought  to  be  liberated 
from  servitude,  yet,  as  it  was  not  the  true  intent  of  the  act  to  authorize  the 
enlistment  of  soldiers,  it  contained  no  provision  for  giving  freedom  to  any 
person  as  a  reward  for  such  service  as  could  be  performed  under  that  act. 

In  view  of  these  marked  features  of  this  law  of  Congress,  and  especially 
of  the  facts  that  it  did  not  require  of  persons  employed  under  it  any  of  the 
essential  qualifications  for  military  duty ;  that  it  did  not  attach  or  assign  these 
employes  to  any  class  of  troops,  or  to  any  arm  of  service ;  that  it  provided 
neither  pay,  rations,  bounty,  nor  military  organization  for  them,  nor  any 
means  whereby  money  could  be  drawn  from  the  treasury  for  paying  them,  — 
it  is  clear  that  it  was  not  the  meaning  and  intention  of  the  legislature,  by 
that  act,  to  reorganize  the  army  and  introduce  into  the  service  the  new 
element  of  colored  soldiery.  If  such  was  the  purpose  of  Congress,  the  lan 
guage  used  in  the  statutes,  the  provisions  inserted  and  those  omitted  would 
mark  this  as  the  most  extraordinary  specimen  of  legislation  which  has  ever 
received  the  sanction  of  the  committees  on  military  affairs.  In  fact,  the 
object  of  this  statute  was  to  give  the  President  power  to  organize  and 
employ  freed  slaves,  captives,  and  colored  persons,  of  either  sex  and  of  what 
ever  age  or  condition,  so  far  and  in  such  way  as  he  should  judge  it  expedi 
ent,  in  order  to  enable  them  to  support  themselves,  and  thus  to  relieve  the 
government  from  the  expense  of  maintaining  them  in  idleness,  or  to  allow 
them  to  be  colonized.  Either  course  he  might  take  would,  as  it  was  then 
thought,  aid  the  government  in  suppressing  the  rebellion. 

The  interpretation  of  the  act,  as  understood  by  President  Lincoln,  at  the 
time  when  he  approved  it,  is  stated  by  him  in  his  message  to  Congress  of 
July  17, 1862  (See  Notes,  p.  406),  sent  to  the  House  of  Representatives  with 
the  approved  bill,  as  explanatory  of  his  views  of  its  meaning.  "  The  eleventh 
section,"  says  he,  "  simply  assumes  to  confer  discretionary  powers  upon  the 
Executive,  without  the  law.  I  have  no  hesitation  to  go  as  far  in  the  direc 
tion  indicated  as  I  may  at  any  time  deem  expedient,  and  I  am  ready  to  say 
now,  I  think  it  is  proper  for  our  military  commanders  to  employ  as  laborers 
as  many  persons  of  African  descent  as  can  be  used  to  advantage."  The 
orders  issued  by  the  President  (General  Orders  No.  109,  July  22,  1862) 
only  five  days  after  the  passage  of  this  act  (cited  in  a  subsequent  part  of  this 
note)  were  in  strict  accordance  with  this  understanding  of  the  law.  It 
required  military  and  naval  commanders  to  employ  as  laborers,  within  and 
from  certain  States,  so  many  persons  of  African  descent  as  could  be  advan 
tageously  used  for  military  and  naval  purposes,  giving  them  reasonable 
wages  for  their  labor.  That  this  act  was  not  designed  to  authorize  the 


484  NOTES    TO    THE    FORTY-THIRD    EDITION. 

general  introduction  of  colored  persons  as  soldiers  into  the  army,  is  also 
apparent  from  the  fact  that  another  act,  passed  by  Congress  the  same  day, 
was  enacted  for  that  express  purpose. 

The  act  of  July  17,  1862  (Chap.  201),  was  introduced  into  Congress  but 
a  few  days  before  its  passage.  It  was  entitled  "  An  Act  to  amend  the  Act 
calling  forth  the  militia  to  execute  the  laws  of  the  Union,  suppress  insurrec 
tion,  and  repel  invasions,  approved  February  28,  1795,  and  the  acts  amenda 
tory  thereof,  and  for  other  purposes." 

This  law,  under  which  colored  peisons  were,  in  fact,  introduced  into  the 
military  service  of  the  United  States,  provides  (Section  1)  that,  whenever 
the  President  shall  call  forth  the  militia  of  the  States,  to  be  employed  in  the 
service,  &c.,  he  may  specify  the  period  for  which  such  service  shall  be  re 
quired,  not  exceeding  nine  months.  If,  by  reason  of  defects,  &c.,  it  shall  be 
found  necessary  to  provide  for  enrolling  the  militia,  the  President  is  author 
ized  to  take  certain  measures  for  that  purpose  ;  "  and  the  enrolment  of  the 
militia  shall  in  all  cases  include  all  able-bodied  male  citizens  between  eighteen 
and  forty-five."  By  this  law,  for  the  first  time,  all  able-bodied  male  citizens 
who  were  not  white  were  to  be  enrolled  in  the  militia  of  the  States.  Section 
2  required  the  militia,  when  called  into  service,  to  be  organized  in  the  mode 
prescribed  by  law  for  volunteers.  Section  3  authorized  the  President  to 
accept  one  hundred  thousand  volunteers  (nothing  being  said  about  their  citi 
zenship  or  color)  as  infantry  for  nine  months.  Section  4  authorized  the  ac 
ceptance  of  other  volunteers  (no  reference  being  made  to  their  citizenship  or 
color)  to  fill  up  existing  regiments.  Section  12  enacts,  "  That  the  President 
be,  and  is  hereby,  authorized  to  receive  into  the  service  of  the  United  States, 
for  the  purpose  of  constructing  intrenchments  or  performing  camp  service, 
or  any  other  labor  or  any  military  or  naval  service  for  which  they  may  be 
found  competent,  persons  of  African  descent ;  and  such  persons  shall  be 
enrolled  and  organized  under  such  regulations,  not  inconsistent  with  the 
Constitution  and  laws,  as  the  President  may  prescribe."  Section  13  pro 
vides  that  when  any  man  or  boy  shall  render  such  service  as  is  provided  for 
in  this  act,  if  he  be  a  slave  and  his  master  a  rebel,  he  shall  have  his  freedom, 
and  the  freedom  of  his  mother,  wife,  and  children,  if  they  also  belong  to  reb 
els.  Section  15  provides  that  all  persons  who  have  been,  or  shall  be  here 
after,  "  enrolled  in  the  service  of  the  United  States  under  this  act,"  shall 
receive  the  pay  and  rations  now  allowed  by  law  to  soldiers,  according  to  their 
respective  grades,  Provided,  that  persons  of  African  descent,  who,  under 
this  law,  shall  be  "  employed"  (in  any  camp  service,  intrenchment  service, 
or  other  labor,  or  military  or  naval  service),  "  shall  receive  ten  dollars  per 
month  and  one  ration,  three  dollars  of  which  monthly  pay  may  be  in  cloth 
ing."  They  were  also  entitled  (by  Section  16)  to  their  freedom,  and,  under 
certain  circumstances,  to  the  freedom  of  their  families. 

The  language  used  in  Section  15  is  inaccurate.  It  was  certainty  not  the 
intention  of  the  act  that  all  persons  who  shall  be  merely  enrolled  in  the 


NOTES   TO    THE    FORTY-THIRD    EDITION.  485 

service  of  the  United  States  should  be  paid ;  for  this  interpretation  of  the 
act  would  require  the  payment  of  all  the  militia  of  the  United  States  to  be 
made  on  a  mere  enrolment  of  their  names,  without  reference  to  their  employ 
ment  as  soldiers.  It  was  doubtless  intended  to  provide  that  "  all  persons 
who  have  been  or  shall  be  enrolled  and  employed  in  the  service  of  the  United 
States  under  this  act  shall  receive  pay,"  &c. ;  then  follows  the  proviso,  that 
persons  of  African  descent,  who  (having  been  enrolled)  shall  be  also  em 
ployed  under  this  act,  shall  receive  ten  dollars  per  month,  £c.  Both  classes 
of  volunteer  militia,  white  and  colored,  were  required  to  be  "  employed  "  in 
order  to  become  entitled  to  the  rations  allowed  by  the  statute.  Section  14 
provided  that  the  expenses  incurred  in  carrying  this  act  into  effect  shall  be 
paid  out  of  the  general  appropriation  for  the  army  and  volunteers.  Colored 
men  employed  under  this  act  being  liable  to  perform  military  or  naval 
service,  were  to  receive  rations,  and  be  paid  out  of  the  same  fund  as  other 
soldiers  and  sailors  in  the  same  service.  By  this  act,  for  the  first  time  the  Presi 
dent  was  empowered  to  receive  certain  persons  of  African  descent  into  the  ser 
vice  of  the  United  States,  who  were  "  to  be  enrolled  "  in  the  militia ;  they  were 
to  be  organized  under  military  regulations,  and  were  authorized  to  be  received 
into  the  military  service,  to  be  "  employed "  on  the  same  duties  as  other 
soldiers  ;  in  the  language  of  the  first  section,  "  to  be  employed  in  the  service 
of  the  United  States,"  and  to  be  paid  by  paymasters  out  of  the  general  ap 
propriation  for  the  army  and  volunteers.  The  word  "  employed  "  is  used  by 
the  statute  in  relation  to  the  white  militia  of  the  States,  as  well  as  to  colored 
men  enrolled  under  this  act ;  therefore  the  use  of  that  word  indicates  no  dif 
ference  between  soldiers  of  different  colors  as  to  the  character  of  their  service. 
All  persons  so  employed  were  called  out  under  a  law  of  which  the  title 
itself  plainly  indicated  the  character  of  the  service  they  were  intended  to  per 
form.  It  was  entitled  "  An  Act  to  amend  the  Act  calling  forth  the  militia 
to  execute  the  laws  of  the  Union,  suppress  insurrections,  and  repel  invasions, 
approved  February  28,  1795,  and  for  other  purposes."  As  the  enrolment 
of  the  militia  was  required  by  the  first  section  "  in  all  cases  to  include  all 
able-bodied  male  citizens  between  the  ages  of  eighteen  and  forty-five  years," 
and  as,  by  the  fifteenth  section,  "  all  persons  thus  enrolled  were  to  receive 
the  pay  and  rations  'now  allowed  by  law  to  soldiers  according  to  their  re 
spective  grades,  except  that  persons  of  African  descent  were  to  receive 
ten  dollars  per  month,"  it  is  plain  that  this  statute  (of  July  17,  1862,  Chap. 
201)  was  intended  to  regulate,  and  in  terms  too  clear  to  be  easily  misunder 
stood,  did  regulate  and  limit  the  pay  to  be  thereafter  given  to  all  persons, 
whether  white  or  colored,  who  should  become  soldiers  in  the  army.  All 
able-bodied  male  citizens  between  eighteen  and  forty-five  years  of  age  were 
to  be  enrolled,  and  all  such  persons  of  African  descent  were  to  be  included 
in  the  enrolment.  All  persons  thus  enrolled  who  should  serve  in  the  army, 
regular  or  volunteer,  were  to  receive  the  pay  and  rations  provided  for  by 
previous  statutes  ;  excepting  only,  that  persons  of  African  descent  were  to 


486  NOTES    TO    THE    FORTY-THIRD    EDITION. 

receive  their  freedom,  if  they  were  slaves,  and  ten  dollars  per  month,  and 
rations ;  while  soldiers  not  of  African  descent  were  to  receive  thirteen  dollars 
per  month  and  rations,  bounty,  &c. 

The  confiscation  act  and  the  militia  act  were  passed  and  approved  on  the 
same  day.  It  is  obvious  that  Congress  did  not  intend  that  these  acts  should 
be  inconsistent  with  each  other.  They  would  have  been  inconsistent  if  the 
confiscation  act  be  so  construed  as  to  authorize  the  President  to  enlist 
colored  volunteers  in  the  army.  The  militia  act  required  all  able-bodied 
males  of  African  descent  between  the  ages  of  eighteen  and  forty-five  years 
to  be  enrolled,  and  when  so  enrolled,  to  be  organized  as  part  of  the  military 
forces.  The  confiscation  act  authorized  the  President  to  employ  as  laborers 
all  persons  of  African  descent  in  such  manner  and  under  such  organization 
as  he  might  deem  expedient.  If  the  President  performed  his  duty  under 
the  militia  act,  by  enrolling  all  able-bodied  males  of  African  descent  between 
the  ages  of  eighteen  and  forty-five  years,  and  organizing  them  as  part  of  the 
military  forces,  there  could  have  been  no  persons  of  African  descent  capable 
of  becoming  soldiers,  except  those  who  had  been  thus  enrolled.  There  could 
therefore  have  been  no  colored  persons  not  already  enrolled,  or  liable  to  be 
enrolled,  in  the  military  forces,  and  therefore  none  who  could  have  become 
volunteer  soldiers  under  the  confiscation  act,  unless  its  provisions  are  in  con 
flict  with  those  of  the  militia  act,  even  if  the  President  had  invited  or  allowed 
enlistments  under  it.  It  is  not  easy  to  believe  that  Congress  intended  by 
one  act  to  confer  upon  the  President  full  discretionary  power  to  employ  a 
large  number  of  colored  persons  as  soldiers,  and  by  another  act,  passed  the 
same  day,  to  take  that  power  from  him  ;  or  to  require  him,  by  one  law,  to 
enroll  all  colored  males  of  the  age  for  military  duty,  and  to  treat  them  as  part 
of  our  military  forces,  and  at  the  same  time,  by  a  second  law,  to  require  or  al 
low  him  to  violate  the  first. 

Whatever  may  have  been  the  extent  of  authority  conferred  by  the 
confiscation  act  upon  the  President  to  "  organize  persons  of  African 
descent  in  such'  manner  as  he  might  judge  expedient  for  the  public 
welfare,"  he  did  not  deem  it  lawful  or  expedient  to  allow  any  persons 
of  African  descent  to  be  organized  under  this  act  as  any  part  of  the  mili 
tary  forces  of  the  United  States.  Neither  General  Lane,  who  recruited 
the  first  colored  regiments  in  Kansas,  nor  any  of  those  who  followed  his 
example,  ever  received  any  order,  or  had  authority  from  the  President,  for 
organizing  troops  of  African  descent  under  the  confiscation  act.  Such  regi 
ments  were,  without  exception,  recruited  and  enlisted  under  the  militia  act 
or  acts  for  raising  volunteers  for  the  army  or  navy.  Though  the  militia  act 
limited  the.  pay  of  colored  troops  to  ten  dollars  per  month  and  one  ration 
per  day,  and  though  this  inequality  of  pay  at  that  time  between  the  colored 
and  white  soldiers  was  a  subject  of  deep  regret  on  the  part  of  the  author 
and  of  many  others  who  felt  its  injustice,  yet  to  deny  that  these  persons  of 
African  descent  were  in  fact  enrolled  and  organized  under  the  militia  act,  or 


NOTES    TO    THE    FORTY-THIRD    EDITION.  487 

to  assert,  with  a  view  of  avoiding  its  provision  limiting  their  pay  to  ten  dol 
lars,  that  they  were  enlisted  as  volunteers  under  the  confiscation  act,  would 
be  not  only  a  violation  of  the  plain  meaning  of  the  laws  themselves,  but 
would  require  us  to  falsify  the  official  records  of  the  War  Department,  which 
show  that  in  truth  no  enlistment  in  the  volunteer  service  under  or  by  author 
ity  of  the  confiscation  act  was  ever  made.  If  the  President  had  the  power  to 
receive  recruits  under  that  act,  he  never  used  it ;  and  no  person  of  African 
descent  can  truthfully  assert  that  he  was  ever  enlisted  as  a  soldier  under  it. 
Prior  to  1863,  persons  of  African  descent  could  become  a  part  of  the  mil 
itary  forces  of  the  United  States  only  by  virtue  of  the  act  of  July  17,  1862, 
Chap.  201. 

The  use  actually  made  by  the  President  of  the  powers  conferred  on  him 
by  the  two  acts  of  July  17,  1862,  Chap.  195  and  201,  was  such,  that  none  but 
laborers  were  ever  employed  under  the  former  ;  colored  soldiers  were  em 
ployed  only  under  the  latter.  If  enlisted  under  the  militia  act,  colored 
soldiers  were  entitled  only  to  ten  dollars  per  month  and  rations.  To  make 
out  that  volunteers  of  African  desent  were  entitled  to  higher  pay  than  this 
statute  provided  for,  it  was  necessary  to  show  that  they  were  not  enlisted 
under  the  authority  of  that  act.  And  as  they  claimed  to  have  entered  the 
military  service  under  one  of  the  acts  of  July  17,  1862,  they  were  obliged 
to  argue  that  the  militia  act  was  not  intended  to  raise  militiamen,  but  was 
intended  to  authorize  the  President  to  hire  laborers,  while  the  confiscation 
act,  as  they  argued,  authorized  him  to  raise  volunteers  —  a  militia  act  to 
authorize  the  employment  of  men,  women,  and  children  as  laborers,  and  a 
confiscation  act  to  raise  militia.  They  were  doubtless  not  aware  that  while, 
in  truth,  no  colored  person  was  ever  employed  or  enlisted  as  a  soldier  under 
that  act,  if  such  enlistment  or  employment  had  occurred,  there  was  no  provis 
ion  of  law,  and  no  appropriation  of  Congress,  by  which  it  would  have  been 
possible  to  draw  a  dollar  out  of  the  treasury  for  their  payment. 

If  the  confiscation  act  gave  the  President  power  to  enlist  colored  men  in 
the  army,  it  would  still  be  necessary  to  show  that  the  President  used  his 
power,  and  actually  permitted  such  enlistments,  before  any  claim  for  pay 
could  be  made  by  reason  of  such  enlistment,  even  if  the  act  had  provided  for 
any  payment.  It  will  be  instructive  to  see  how  the  authority  conferred  by  this 
act  was  in  fact  used,  in  order  to  ascertain  what  was  the  contemporaneous 
construction  of  that  power  by  the  one  upon  whom  it  was  conferred. 

On  the  17th  of  July,  1862,  as  previously  stated,  two  acts  were  approved, 
one  of  which  authorized  the  President  to  employ  and  use,  in  such  manner  as 
he  should  judge  best,  as  many  persons  of  African  descent  as  he  might  think 
proper  for  the  suppression  of  the  rebellion.  What  was  the  manner  of  em 
ploying  these  persons  of  African  descent  adopted  by  the  President  under  the 
confiscation  act  of  July  17,  Chap.  195? 

On  the  22d  July,  1862,  the  President,  in  carrying  out  the  provisions  of 
this  law,  issued  the  following  General  Orders,  No.  109,  which  directed, 


488  NOTES    TO    THE   FORTY-THIRD    EDITION. 


II.  "  That   the    military  and   the  naval  commanders  should  employ  as 
laborers,  within  and   from   said   States,  Virginia,  South  Carolina,  Georgia, 
Florida,  Alabama,  Mississippi,  Louisiana,  Texas,  and  Arkansas,  so  many 
persons  of  African  descent  as  can  be  advantageously  used  for  military  and 
naval  purposes,  giving  them  reasonable  wages  for  their  labor." 

III.  "  That  accurate  accounts  be  kept  both  of  property  and  labor  of  Afri 
cans,  in  order  to  settle  accounts  justly." 

This  order  is  strictly  confined  to  the  employment  of  "  laborers,"  only,  from 
and  within  the  rebellious  States.  Under  that  order,  "  laborers  "  have  been 
employed  and  paid  for  service  in  camps,  forts,  &c.,  &c. ;  but  no  persons  have 
been,  or  could  be,  so  employed  as  soldiers,  for  it  is  confined  exclusively  to 
laborers  for  wages.  Their  accounts  for  work  and  labor  done  were  to  be 
"  accurately  kept  "  and  "justly  settled."  Their  property  accounts  were  also 
to  be  included.  Females,  whole  families  of  men,  women,  and  children,  might 
be,  and  in  fact  were,  employed  for  military  or  naval  purposes,  in  menial 
labor,  in  forts,  camps,  and  trenches.  If  the  President  had  deemed  these 
persons  so  employed  soldiers,  and  entitled  to  full  bounty,  pay,  and  rations, 
including  pensions,  &c.,  he  would  not,  and  could  not,  have  issued  the  fore 
going  order,  but  would  have  required  enlistment  and  other  military  proceed 
ings,  and  they  would  have  been  regularly  paid  by  paymasters  out  of  money  in 
the  treasury ;  but,  on  the  contrary,  he  construed  the  law  as  applicable  to  labor 
ers  only,  and  confined  his  exercise  of  power  under  that  law  solely  to  the  recep 
tion  of  laborers,  and  to  their  payment  as  such,  and  did  not  include  soldiers. 
If  a  law  authorizes  the  President  to  employ  certain  persons  at  his  discretion, 
no  one  can  enter  the  service  of  the  country  under  that  law  without  being 
authorized  to  enter  it  by  him ;  and  as  he  has  given  no  authority  to  any 
person  to  enlist  as  a  soldier  under  that  act,  no  one  can  have  entered  the 
service  as  a  soldier  under  that  law.  No  slave  or  colored  person  can 
therefore  lawfully  set  up  a  claim  to  payment  under  the  law  of  1861,  or  any 
other  law,  as  a  soldier,  by  assuming  that  he  was  accepted  into  the  military 
service  by  any  act  of  the  President  under  authority  of  the  statute  of  July  17, 
1862,  Chap.  195.  No  person  has  in  fact  ever  been  received  as  a  soldier  under 
that  act.  (See  Records  of  Adjutant  General's  Office,  War  Department.) 

On  the  other  hand,  soon  after  the  passage  of  the  militia  act  of  July  17, 
1862,  Chap.  201,  which  expressly  authorized  the  raising  of  colored  troops,  the 
President  exercised  the  power  conferred  on  him  by  that  act,  and  authorized 
General  Lane,  senator  from  Kansas,  to  raise  one  or  more  brigades  of  volunteer 
infantry,  without  limiting  him  as  to  the  color  of  the  troops  to  be  raised. 

The  following  is  the  order  :  — 

WAR  DEPARTMENT,  WASHINGTON  CITY,  ) 
July  22,  1862.      J 
HON.  JAMES  H.  LANE,  KANSAS. 

SIR  :  You  are  hereby  notified  that  you  have  been  appointed  by  the  Secre 
tary  of  War  commissioner  for  recruiting  in  the  department  of  Kansas. 

You  are  requested  to  proceed  forthwith  to  raise  and  organize  one  or  more 


NOTES    TO    THE   FORTY-THIRD    EDITION.  489 


brigades  of  volunteer  infantry,  to  be  mustered  into  the  service  of  the  United 
States  for  three  years,  or  during  the  war. 

For  this  purpose  full  authority  is  hereby  conferred  upon  you  to  establish 
camps  and  provide  for  the  maintenance  of  discipline  and  the  supply  of  the 
troops  with  the  munitions  of  war. 

On  your  requisition  the  commanding  general  of  the  department  will  issue 
supplies  of  arms  and  accoutrements,  clothing,  camp  equipage,  and  subsist 
ence.  Transportation  for  recruits  and  recruiting  officers  will  be  furnished  on 
your  requisition  or  refunded  on  vouchers  in  the  usual  form,  accompanied  by 
your  order  directing  the  movement. 

It  is  recommended  that  the  provisions  of  General  Order  No.  75,  current 
series,  be  followed  as  far  as  possible  in  organizing  companies,  to  the  end 
that  muster  rolls  may  be  uniform  and  authentic.  This  is  necessary  in  order 
to  secure  justice  to  the  soldier  and  prevent  confusion  in  accounts  and  loss  to 
the  government. 

In  performing  these  duties  you  are  authorized  to  visit  such  places  within 
the  department  of  Kansas  as  may  be  necessary,  for  which  purpose  transpor 
tation  will  be  furnished  you  by  the  commanding  general  on  your  requisition, 
or  the  cost  of  the  same  will  be  reimbursed  by  the  Secretary  of  War  from  the 
army  contingent  fund. 

You  will  be  expected  to  report  frequently  to  this  department  the  progress 
and  prospect  of  the  work,  and  to  make  any  suggestion  that  may  occur  to  you 
from  time  to  time  as  useful  in  facilitating  its  accomplishment. 

This  appointment  may  be  revoked  at  the  pleasure  of  the  Secretary  of  War. 

By  order  of  the  Secretary  of  War, 
(Signed)  C.  P.  BUCKINGHAM, 

Brig.  Gen.  and  A.  A.  O. 
(Official.) 

THOMAS  M.  VINCENT, 

Assistant  Adjutant  General. 

Senator  Lane,  of  Kansas,  by  virtue  of  this  order,  proceeded  to  raise  one 
or  more  regiments  of  colored  soldiers  as  volunteers,  as  he  has  personally  in 
formed  the  author,  under  the  provisions  of  the  act  of  July  17,  1862  (Chap. 
201).  These  colored  volunteers  entered  the  service  under  that  act,  and  have 
been  paid  as  soldiers,  in  accordance  with  an  opinion  of  the  Solicitor  of  the 
War  Department,  which  received  the  sanction  of  General  Lane,  ten  dollars 
per  month  and  one  ration  per  day  from  that  time  to  the  time  of  their  dis 
charge. 

The  following  is  extracted  from  the  records  of  the  War  Department :  — 

ADJUTANT  GENERAL'S  OFFICE,       \ 
WASHINGTON,  D.  C.,  May  30,  1863.  $ 

Indorsement  on  letter  of  Hon.  J.  H.  Lane,  U.  S.  S.,  dated  Washington, 
D.  C.,  May  27,  1863  (K.  258,  V.  S.).  Requests  that  the  first  regiment  Kan 
sas  colored  volunteers  be  paid,  &c. 

Respectfully  referred  to  the  Paymaster  General,  in  order  that  these  troops 
may  be  paid  under  Section  15  of  the  act  approved  July  17, 1862  (Chap.  201), 
(G.  O.  91,  1862). 

By  order  of  the  Secretary  of  War, 
(Signed)  THOMAS  M.  VINCENT, 

Assistant  Adjutant  General. 
(Official  Copy.) 

62- 


490  NOTES    TO    THE    FORTY-THIRD    EDITION. 

From  the  foregoing  facts  it  is  seen  that  whether  President  Lincoln  was  or 
was  not  authorized  to  enlist  colored  soldiers,  under  the  provisions  of  the 
confiscation  act,  as  contended  by  some,  he  did  not  in  fact  make  any  such 
enlistments.  The  claim  of  certain  colored  soldiers  for  payment  on  the 
ground  that  they  were  enlisted  under  that  act  is  also  shown  by  this  fact  to 
be  absolutely  without  foundation.  To  support  such  a  claim,  the  President 
must  have  been  so  misled  as  to  assume  or  assert  facts  which  he  personally 
knew  had  no  existence.  The  only  use  the  President  ever  made  of  the  power 
of  employing  persons  of  African  descent,  conferred  on  him  by  the  confisca 
tion  act  (Chap.  195),  was  to  employ  them  as  laborers  for  wages,  as  stated 
in  his  general  order  above  cited ;  while,  under  the  power  conferred  on 
him  by  the  militia  act,  as  in  the  case  of  General  Lane's  regiments,  he 
caused  colored  persons  to  be  enrolled,  and  employed,  and  paid  ten  dollars 
per  month  as  militia.  By  reason  of  his  honest  and  faithful  administra 
tion  of  the  laws  on  this  subject,  he  was  temporarily  subjected  to  unjust  cen 
sure. 

The  records  of  the  Adjutant  General's  office,  in  the  War  Department, 
show  that  no  colored  persons  were  admitted  into  the  military  service  as  sol 
diers  until  after  the  passage  of  the  act  of  July  17,  1862  (Chap.  201).  No  enT 
listments  of  colored  soldiers  had  been  made  prior  to  that  date,  under  the  pro 
visions  of  either  of  the  preceding  acts  of  Congress  for  the  volunteer  or 
regular  army.  Yet,  at  one  time  during  the  war,  the  question  was  raised  by 
some  of  the  friends  of  colored  troops,  whether  persons  of  African  descent, 
who  enlisted  as  volunteers  subsequently  to  the  passage  of  the  act  of  July,  1862, 
which  provided  for  paying  them  ten  dollars  per  month  and  rations,  might  not 
in  some  way  escape  from  this  limitation  of  their  pay,  and  entitle  themselves 
to  the  same  pay,  rations,  and  bounty  as  white  volunteers  ?  There  was  then 
no  law  of  Congress  by  which  such  persons  could  enter  the  service  of  the 
United  States  as  soldiers  in  the  army  except  under  one  of  the  two  acts  of 
July  17,  1862  (Chap.  195  or  Chap.  201).  If  colored  persons  were  employed 
under  the  power  conferred  in  Chap.  201,  the  amount  to  be  paid  soldiers  for 
military  service  was,  in  express  language,  limited  to  ten  dollars  per  month 
and  rations.  The  only  way  of  avoiding  the  effect  of  this  statute  was  to  claim 
that  colored  men  had  enlisted  as  soldiers  under  the  confiscation  act  of  July 
17,  1862  (Chap.  195).  Unfortunately  this  claim  was  not  founded  in  fact,  but 
quite  the  contrary,  as  was  well  known  to  those  who  had  access  to  the  records 
of  the  Adjutant  General's  office  in  the  War  Department.  If  that  claim  had 
been  founded  in  fact,  there  was  no  law  of  Congress  which  provided  for  pay  or 
bounty  to  persons  employed  by  the  President  under  that  act ;  and  the  Treasury 
Department  could  not,  and  the  author  had  reason  to  believe  did  not,  deem 
itself  authorized  to  pay  any  money  out  of  the  public  funds  for  such  service,  no 
appropriation  having  been  made  for  that  purpose.  If  the  colored  soldiers  had 
not  enlisted  under  the  act  of  1862  (Chap.  201),  they  would  have  had  no  claim, 


NOTES    TO    THE    FORTY-THIRD    EDITION.  491 

under  any  statute,  against  the  government  for  payment  for  their  services,  nor 
would  they  have  had  a  claim  to  the  freedom  of  themselves  and  of  their  families, 
as  provided  for  in  this  act.  It  was  the  denial  of  the  unfounded  claim,  set  up 
in  behalf  of  the  colored  soldiers,  and  the  recognition  of  their  real  claims 
against  the  government  (under  Chap.  201),  that  enabled  the  colored  sol 
diers  to  secure  by  law  the  amount  of  pay  allowed  them  by  that  statute,  and 
the  freedom  of  themselves  and  of  their  families. 

Some  of  the  friends  of  the  colored  volunteers  entertained  at  one  time  an 
idea  that  if  the  President  had  employed  persons  of  African  descent  under 
the  authority  conferred  on  him  by  the  confiscation  act  of  1862  (Chap.  195), 
they  might  be  supposed  or  assumed  to  have  enlisted  under  one  of  the  prior 
acts  for  calling  out  volunteers ;  but  no  such  idea  is  sanctioned  by  those  who 
are  acquainted  with  the  military  statutes  of  the  United  States  ;  and  if  there 
were  nothing  in  the  law  against  such  a  supposition  or  assumption,  the  fact,  as 
recorded  in  the  Adjutant  General's  office,  is,  that  no  such  enlistments  were 
ever  made,  and  therefore  no  money  could  be  lawfully  paid  out  of  the  treas 
ury  upon  an  assumption  of  a  fact  known  by  every  officer  in  the  War  De 
partment  to  be  without  foundation. 

An  opinion  of  the  late  Attorney  General  Bates  is  not  in  accordance  with 
the  views  here  expressed  in  relation  to  the  true  meaning  of  the  two  acts  of 
July  17,  1862.  He  argues  to  show  that  the  confiscation  act  was  intended  to 
authorize  the  raising  of  volunteer  militia  ;  and  the  militia  act  was  to  authorize 
the  enrolment,  organization,  and  use  of  laborers  and  servants.  He  also  as 
sumes  the  fact  that  soldiers  were  enlisted  under  the  authority  of  the  confisca 
tion  act.  The  first  of  these  propositions  has  been  shown  to  be  not  in  accord 
ance  with  the  true  meaning  of  Congress  in  passing  the  act,  and  the  second  is 
not  in  accordance  with  the  truth.  He  also  states,  as  the  foundation  of  his 
opinion,  that  there  was  nothing  in  the  laws  of  the  United  States  prior  to  the 
acts  of  July  17,  1862,  which  prevented  colored  persons  from  enlisting  in  the 
military  service  of  the  United  States,  and  as  confirmation  of  this  statement  has 
cited  what  he  supposed  were  all  the  statutes  of  importance  on  that  subject. 
Unfortunately  he  has  overlooked,  in  his  researches,  the  act  of  Congress  of 
April  24,  1816  (Chap.  69,  Sect.  9),  which  gives  the  rules  and  regulations  of 
the  War  Department  the  force  of  law,  as  decided  by  the  Supreme  Court  (4 
How.  117),  and  the  army  regulations  of  August  10,  1861  (Art.  929),  and  the 
act  of  Congress  of  May  8,  1792  (1  United  States  Statutes,  271),*  well  known 
as  "  the  foundation  of  the  military  system  of  the  United  States,"  f  all  of  which 
have  been  cited  in  this  note.  His  opinion  shows  that  he  was  not  aware  of  the 
facts  as  to  enlistments  recorded  in  the  War  Department,  nor  the  general 
orders  of  President  Lincoln  above  quoted.  If  these  facts  and  these  acts  of 
Congress,  the  decisions  of  the  Supreme  Court  and  the  President's  orders,  had 

*  Brightly's  Digest  of  the  laws  of  the  United  States,  p.  619. 

t  Speeches  of  Senators  Sumner,  Grimes,  Collamer,  and  others,  pp.  494-507. 


492  NOTES    TO    THE   FORTY-THIRD    EDITION. 

been  called  to  his  attention,  or  if  he  had  attended  the  debates  in  Congress 
while  the  two  acts  of  July  17,  1862,  were  under  discussion  (quoted  in  the 
Appendix,  pp.  494-507),  it  is  believed  that  no  one  would  have  seen,  more 
readily  than  himself,  the  error  in  law  and  the  mistake  of  facts  on  which  his 
opinion  was  founded. 

On  the  25th  of  August,  1862,  the  Secretary  of  War  wrote  a  letter  of 
instructions  to  Brigadier  General  Saxton,  which  authorized  him  to  organize 
in  South  Carolina  a  number  of  laboring  forces  not  exceeding  fifty  thousand, 
to  be  paid  from  five  to  eight  dollars  per  month ;  also  to  receive  into  the 
service  of  the  United  States  such  number  of  volunteers  of  African  descent  as 
he  might  deem  expedient,  not  exceeding  five  thousand  in  all ;  to  detail  officers 
to  instruct  them  in  military  drill,  discipline,  and  duty,  and  to  command  them. 
"  The  persons  so  received  into  service,  and  their  officers,  to  be  entitled  to 
and  receive  the  same  pay  and  rations  as  are  allowed  by  law  to  volunteers 
in  the  service."  Under  these  instructions  the  First  South  Carolina  Volun 
teers  were  recruited,  Colonel  T.  W.  Higginson,  of  Massachusetts,  command 
ing;  but  the  payment  therein  promised  was  for  a  long  time  withheld,  the 
Secretary,  of  War  having  found  that  he  had  exceeded  his  lawful  authority  in 
making  the  promise.  But  it  was  held  by  the  author,  who  was  then  Solicitor 
of  the  War  Department,  that  this  letter  was  a  pledge  of  the  Secretary,  on 
which  these  volunteers  had  relied,  and  that  the  Department  was  bound  in 
good  faith  either  to  discharge  them  from  service,  or  to  pay  them  according 
to  promise.  The  Secretary  did  not  discharge  these  soldiers,  but  the  Solicitor 
made  an  immediate  and  urgent  application  to  Congress  for  such  legislation  as 
would  enable  the  Treasury  Department  to  redeem  that  pledge.  On  the  3d  of 
March,  1865,  an  act  was  passed,  which  (Chap.  79,  Sect.  5)  provides  that 
colored  soldiers  enlisted,  by  Generals  Hunter  and  Saxton,  under  authority  of 
the  Secretary  of  War,  dated  August  25,  1862,  and  which  declared  that  the 
persons  so  received  into  the  service,  and  their  officers  were  to  be  entitled  to 
and  receive  the  same  pay  and  rations  as  are  allowed  by  law  to  other  volun 
teers  in  the  service,"  and  in  all  other  cases  where  it  should  be  made  to  appear 
to  the  satisfaction  of  the  Secretary  of  War,  that  any  regiment  of  colored 
troops  had  been  mustered  into  the  service  of  the  United  States  under  any  as 
surance  by  the  President  or  Secretary  of  War,  that  the  non-commissioned 
officers  and  privates  of  such  regiment  should  be  paid  the  same  as  other  troops 
of  the  same  arm  of  the  service,  shah1  from  the  date  of  their  enlistment  receive 
the  same  pay  and  allowances  as  are  allowed  by  law  to  other  volunteers 
in  the  military  service."  Under  this  law,  the  troops  raised  by  General 
Saxton,  including  the  First  South  Carolina  Volunteers,  were  paid,  and 
thus  the  pledge  of  Secretary  Stanton  was  faithfully,  even  though  tardily, 
redeemed. 

Of  all  the  officers  connected  with  the  War  Department,  none  made,  from 
the  beginning  of  the  rebellion,  more  energetic  and  effectual  efforts  to  introduce 


NOTES    TO    THE   FORTY-THIRD    EDITION.  493 

colored  troops  into  the  military  service  than  the  Assistant  Secretary  of 
War,  Hon.  Peter  H.  Watson.  His  disinterested,  patriotic,  and  invalu 
able  services  to  the  country  are  none  the  less  honorable  because  his  extreme 
modesty  has  prevented  their  becoming  generally  known  to  the  public. 
Whenever  a  history  of  the  War  Department,  during  President  Lincoln's 
administration,  shall  be  truthfully  written,  no  name  will  be  recorded  of  purer 
lustre  than  that  of  him  who  was  the  fearless  mentor  and  the  trusted  friend 
of  Secretary  Stanton. 

DEBATES  IN  CONGRESS  ON  THE  MILITIA  AND  CONFISCATION  ACTS  OF 
JULY  17,  1862. 

The  debates  in  Congress  upon  the  confiscation  act  and  the  militia  act ; 
the  explanations  of  their  respective  authors ;  the  various  amendments  which 
were  proposed,  and  accepted  or  rejected ;  the  language  finally  adopted, 
defining  the  character  of  the  service  to  which  colored  men  were  to  be  intro 
duced  ;  and  the  discussion,  in  the  speeches  of  several  leading  senators,  upon 
the  phraseology  finally  adopted,  will  place  the  true  meaning  of  Congress,  in 
passing  both  of  these  acts,  beyond  any  question  or  doubt,  and  will  show 
that  the  militia  act  was  intended  to  provide  for  raising  militia-men. 

A  review  of  the  remarks  made  by  the  members  of  the  Senate  and  House, 
including  those  of  the  persons  who  introduced  and  proposed  these  acts 
above  cited,  will  show  how  earnest  was  the  contest  which  resulted  in 
introducing  colored  soldiers  into  our  military  service,  and  will  also  make  it 
clear  that  the  confiscation  act,  July  17,  1862  (Chap.  195),  so  far  as  it  related 
to  the  use  of  colored  persons  and  slaves,  was  not  intended  to  make  them  a 
part  of  the  organized  military  forces  of  the  United  States,  for  the  purpose 
of  fighting  the  enemy,  nor  will  any  person  who  reads  these  debates  be 
likely  to  doubt  that  the  act  to  amend  the  militia  act  of  1795,  so  far  as  it 
relates  to  slaves  and  negroes,  was  designed  to  introduce  negro  soldiers  into 
the  military  service  as  part  of  the  national  forces. 

It  is  not  to  be  supposed  that  Congress  passed  two  acts  (a  confiscation  act 
and  a  militia  act)  on  the  same  day,  for  the  same  purpose,  and  it  must  be 
presumed  that  each  act  has  its  proper  object,  and  that  each  sought  to  accom 
plish  something  not  accomplished  by  the  other.  Which,  then,  of  these  two 
acts  was  intended  to  raise  soldiers  to  fight  battles,  and  which  was  intended  to 
employ  laborers  to  hold  forts  in  hot  climates,  carry  burdens,  dig  trenches, 
groom  horses,  cook,  wash,  black  boots,  and  wait  on  tables  ?  Was  the  con 
fiscation  act  intended  to  make  soldiers ;  and  the  militia  act  to  enroll  and 
discipline  waiters,  servants,  &c.  ?  or  was  the  militia  act  intended  to  make 
militia-men  of  colored  volunteers  ? 

A  review  of  the  history  of  these  two  bills  in  Congress,  of  their  objects  as 
explained  by  their  authors,  of  the  objections  made  and  amendments  offered, 
will  remove  all  doubt,  if  any  has  existed,  as  to  the  true  meaning  of  these 


494  NOTES    TO    THE    FORTY-THIRD    EDITION. 

acts,  and  will  show  conclusively,  as  understood  by  the  members  of  the  legis 
lature  generally,  when  these  acts  were  passed,  viz.,  July  17,  1862,  — 

1.  That  no  colored  men  were  then  in  the  military  service  of  the  United 
States  as  enlisted  soldiers. 

2.  That  they  had  been  excluded  by  law  from  the  militia  and  from  the 
army. 

3.  That  one  of  these  acts  (Chap.  195)  was  to  empower  the  President  to 
employ  laborers. 

4.  That  the  other  of  these  acts  (Chap.  201)  was  to  empower  him  to  make 
colored  men  soldiers,  providing  for  their  pay  ten  dollars  per  month. 

THE  DEBATES  IN  CONGRESS  ON  THE  ACTS  OF  JULY,  1862. 

In  1861  no  attempt  appears  to  have  been  made  to  legalize  the  employ 
ment  of  negroes  as  soldiers.  The  first  bill  which  gave  power  to  the  Presi 
dent  to  make  use  of  colored  persons,  in  any  way,  for  the  suppression  of  the 
rebellion,  was  that  which  was  reported  by  Mr.  Senator  Clarke,  May  14,  1862, 
from  the  select  committee  on  confiscation.  (S.,  No.  310.)  The  title  of  this 
bill  was  "  to  suppress  insurrection,  punish  treason  and  rebellion,  and  for 
other  purposes."  (Globe,  p.  2112.)  On  the  16th  of  May  it  was  taken  up 
for  consideration  in  committee  of  the  whole  (Globe,  p.  2165),  and  it  con 
tained,  in  the  identical  words  as  passed  in  the  statute  July  17,  1862  (Chap. 
195),  the  clause  relating  to  the  "  employment  of  persons  of  African  descent." 
The  discussion  was  continued  on  the  19th  of  May,  when  a  motion  was 
made  by  Senator  Powell  to  strike  out  that  section  relating  to  the  employ 
ment  of  persons  of  African  descent ;  and  the  motion  was  lost  by  a  vote  of 
yeas  11,  nays  25.  During  the  discussion,  Senator  Henderson  expressed  an 
objection  to  arming  or  to  employing  negroes,  and  charged  that  the  use  of 
them  was  an  act  of  cruelty.  Senator  Clarke,  in  explaining  the  meaning 
and  intent  of  this  clause  of  the  proposed  statute,  said,  — 

The  committee  did  not  adopt  that  provision  hastily  and  without  con 
sideration,  nor  unadvisedly.  They  adopted  it  deliberately.  They  considered 
it  carefully.  They  amended  the  proposition  first  proposed,  and  endeavored 
to  put  it  in  such  a  shape  as  would  be  satisfactory  to  the  country,  if  they 
could  do  it ;  and  I  beg  the  senator  to  consider  the  position  in  which  we 
are.  The  summer  is  coming  ;  our  troops  are  in  a  hot  climate ;  they  are  in 
a  warm  latitude.  It  is  reported  that  already  one  or  two  cases  of  yellow  fever 
have  appeared  in  New  Orleans.  Our  meii  are  to  die  here  like  sheep  and 
dogs,  and  that  is  what  the  rebels  are  aiming  at.  Are  your  prejudices  to 
stand  in  our  way,  when  we  see  our  sons  and  brothers  rotting  there,  to  pre 
vent  us  employing  Africans,  who  can  stand  that  climate,  in  order  to  preserve 
the  lives  of  our  kindred?  and  are  we  then  to  be  accused  of  barbarity  ?  Our 
humanity  is  such  that  we  want  the  white  man  out  of  that  climate,  where  he  can 
not  stay  without  certain  death,  and  put  in  a  man  who  can  stay,  and  who  will  be 
loyal ;  and  I  hope  it  is  no  offence  to  humanity,  nor  to  Christianity  either,  to  do  it. 

We  do  not  desire  to  arm  the  negro  universally.     We  desire   to  take  as 


NOTES    TO    THE   FOKTY-THIRD    EDITION.  495 

many  of  them  as  may  be  necessary,  in  the  judgment  of  the  President,  —  and 
he  is  a  humane  man,  —  and  put  them  into  these  fortifications,  and  into  these 
cities,  and  hold  them  from  the  rebels.  If  we  did  not  do  that,  what  would  be 
the  case  ?  Down  in  New  Orleans,  when  our  men  were  cut  down  with 
disease,  and  lying  in  the  hospitals,  and  could  not  raise  a  gun  or  lift  a 
sword,  these  rebels  would  sweep  in  upon  them ;  the  whole  force  would  be 
swept  away,  and  we  should  have  all  this  work  to  do  over  again.  Let  us 
take  the  men  who  can  bear  the  climate.  Having  accomplished  our  purpose 
in  securing  these  places,  let  us  hold  them.  Let  us  show  these  people,  when 
they  threaten  that  they  will  draw  us  into  that  climate,  and  our  men  shall 
die,  that  we  have  a  way  to  meet  it ;  we  can  employ  those  who  can  stand  the 
climate,  and  preserve  our  own  brothers  and  our  own  sons. 

MR.  HENDERSON.  ...  I  wish  merely  to  suggest  to  the  senator,  in 
all  kindness,  —  and  I  do  it,  knowing,  I  believe,  what  I  am  saying,  —  that  if  we 
have  to  trust,  to  put  down  this  rebellion,  to  the  negroes  of  the  cotton 
States,  we  never  shall  put  it  down,  —  never  on  the  face  of  the  earth. 

MR.  CLARKE Nobody  suggested  that,  and  nobody  proposed  it. 

We  propose  to  put  it  down,  and  we  propose  to  hold  it  down  by  the  black 
man,  if  we  cannot  in  any  other  way,  while  the  yellow  fever,  and  disease,  and 
plague  sweep  our  men  away.  We  do  not  propose  to  let  the  rebel  have  as 
his  ally  the  yellow  fever  and  the  plague  ;  we  propose  to  subdue  even  that, 
and  to  hold  these  places.  We  propose  to  put  it  down  by  the  loyal  men 
and  the  free  citizens  of  the  government ;  but  if  these  rebels  will  resort  to 
that  course  which  makes  it  necessary  for  us  to  do  it,  we  have  no  choice,  in 
saving  the  lives  of  our  sons  and  brothers,  but  to  do  it;  and,  so  help  us  God, 
we  will  try.  —  Globe,  p.  2200. 

From  these  remarks  it  is  obvious  that  it  was  not  the  intent  of  the  com 
mittee  who  reported  this  bill,  nor  of  the  chairman  of  the  committee,  to 
arm  the  negro  universally,  or  to  trust  to  the  negro  to  put  down  the  rebellion. 
"  Nobody  suggested  that"  —  " Nobody  proposed  it." 

"  We  propose  to  employ  Africans  in  New  Orleans,  where  our  men  die 
like  sheep  and  dogs"  —  "  to  employ  Africans,  who  can  stand  the  climate, 
in  order  to  preserve  the  lives  of  our  kindred."  "  We  desire  to  put  them 
into  the  fortifications  and  into  those  cities,  and  hold  them  from  the  rebels." 

"  We  propose  to  put  the  rebellion  down  by  the  loyal  men  and  the  free 
citizens  of  the  government ;  but  if  the  rebels  resort  to  that  course  which 
makes  it  necessary  for  us  to  do  it,  we  have  no  choice,  in  saving  the  lives  of 
our  sons  and  our  brothers,  but  to  do  it." 

The  declaration  of  Mr.  Clarke  was,  therefore,  very  far  from  a  statement 
that  the  object  of  this  llth  section  of  the  confiscation  act  was  to  authorize 
the  general  arming  of  the  colored  men,  and  introduction  of  colored  soldiers 
into  the  volunteer  army  of  the  United  States  ;  and  no  further  statement 
appears  to  have  been  made  on  that  point  during  the  remainder  of  the 
session,  and  no  further  objection  was  made  by  any  member  of  the  Senate  or 
House  to  this  section  of  the  confiscation  act,  although  many  members 
were  steadily  opposed  to  arming  the  negroes  as  soldiers. 

The  next  effort  made  in  that  Congress  was  by  Mr.  Sedgwick,  of  the 
House.  He  attempted,  in  the  House  Committee  on  confiscation,  to  get 


496  NOTES    TO    THE    FORTY-THIRD    EDITION. 

a  clause  inserted  in  this  confiscation  bill,  to  authorize  the  employment 
of  colored  soldiers.  But  this  proposal  was  voted  down  in  the  committee. 
He  had  leave  to  propose  such  a  plan  in  the  House  as  an  amendment  to 
the  report  of  the  committee.  He  did  offer  such  a  proposed  amendment, 
May  23,  1862,  in  the  House.  This  amendment  made  it  the  duty  of  every 
commanding  military  or  naval  officer,  whose  military  district  shall  embrace 
any  portion  of  the  States  of  Virginia,  North  Carolina,  South  Carolina, 
Georgia,  Tennessee,  Alabama,  Louisiana,  Florida,  Texas,  and  Arkansas, 
to  enroll  and  employ  such  loyal  persons  (without  regard  to  color)  in  the  ser 
vice  of  the  United  States,  giving  freedom  to  such  persons,  if  held  as  slaves, 
&c.  This  plan  was  advocated  by  an  able  speech  from  Mr.  Sedgwick.  The 
vote  on  his  amendment  was  taken  on  the  26th  of  May,  and  it  was  lost  by 
yeas  32,  nays  1 16  ;  and  among  the  nays  (voting  against  the  use  of  the  negro 
as  a  soldier)  were  several  gentlemen  now  among  the  most  ardent  supporters 
of  that  measure.  (See  Globe,  p.  2361.)  On  the  18th  of  June,  1862, 
Senator  Hale  asked  leave,  by  unanimous  consent,  to  introduce  a  bill 
(No.  357)  "  concerning  enlistments  in  the  military  service  of  the  United 
States." 

It  provided  that,  "  Whenever  the  public  service  requires  further  enlist 
ments  of  recruits  for  the  army,  either  of  regulars  or  volunteers,  the 
President  shall  issue  his  proclamation  to  the  people  of  the  United  States, 
inviting  enlistments  from  all  the  people,  without  distinction  of  race,  color, 
or  condition ;  that  every  slave  who  shall  enlist  and  be  received  into  the 
military  service  shall  be  immediately  and  absolutely  free  from  all  claim  of 
service,  except  that  which  he  submits  himself  to  by  such  enlistment ;  and 
that  every  person  of  color,  bond  or  free,  who  shall  enlist  into  the  military 
service  of  the  United  States,  shall  be  entitled  to  all  wages,  bounties,  and 
privileges  allowed  by  law  to  any  soldier  enlisted  into  the  army." 

This  bill  was  referred  to  the  committee  on  military  affairs.  If  the  law  then 
authorized  the  enlistment  of  negroes,  why  was  this  project  brought  for 
ward  by  Senator  Hale  ?  This  bill  did  not  pass.  On  the  8th  of  July,  1862, 
near  the  end  of  the  session,  Senator  Wilson,  by  direction  of  the  committee 
on  military  affairs,  introduced  a  bill  (No.  384)  to  "  amend  the  act  calling 
forth  the  militia  to  execute  the  laws  of  the  Union,  suppress  insurrection, 
and  repel  invasion;  approved  February  28,  1795."  (Globe,  p.  3178.)  On 
the  9th  of  July,  Senator  King  was  instructed  by  the  committee  on  mili 
tary  affairs  "  to  report  a  bill  (No.  386)  to  provide  for  receiving  into  the 
service  of  the  United  States  persons  of  African  descent,  for  work  on  in- 
trenchments  and  other  war  services."  (Globe,  p.  3188.)  The  same  day 
Senator  Wilson's  bill  (No.  384)  was  called  up.  Senator  Grimes  (Globe, 
p.  3198),  moved  an  amendment  whereby  colored  men  could  be  called 
into  service  in  the  same  way  as  white  men,  and  all  should  alike  "  receive 
the  pay  and  rations  of  soldiers,  as  now  allowed  by  law  according  to  their 
respective  grades." 


NOTES    TO    THE   FORTY-THIRD    EDITION.  497 

MR.  SAULSBURY.  ...  If  anything  has  contributed  more  than  an 
other  to  the  disasters  which  have  followed  the  Federal  arms,  it  has  been, 
in  my  judgment,  the  persistent  attempt  to  bring  about  the  state  of  affairs 
contemplated  by  this  amendment.  It  would  have  been  utterly  impossible, 
had  this  war  been  really  prosecuted  for  the  maintenance  of  the  Constitution, 
as  our  fathers  made  it,  and  the  restoration  of  the  Union  as  it  was,  for 
the  people  of  this  country  ever  to  allow  this  Union  to  be  dissolved.  The 
patriotic  spirits  of  the  North  and  the  South  would  have  risen  up  and 
said  that  the  Federal  Union  should  be  preserved,  and  the  Federal  Constitu 
tion  maintained.  But  no  sooner  are  we  engaged  in  civil  war,  notwithstand 
ing  the  administration  and  Congress  announced  that  the  object  should  be 
simply  for  the  preservation  of  the  Constitution  and  the  restoration  of  the 
Union,  than  an  attempt  is  made  on  every  occasion  to  change  the  character 
of  the  war,  and  to  elevate  the  miserable  nigger,  not  only  to  political  rights, 
but  to  put  him  in  your  army,  and  to  put  him  in  your  navy.  And  while  this 
policy  is  pursued  the  Union  will  never  be  restored,  because  you  can  have  no 
Union  without  the  preservation  of  the  Constitution. 

But,  sir,  I  will  not  detain  the  Senate  with  any  remarks.  I  have  said 
enough  on  this  subject  in  the  present  Congress.  I  have  a  right,  however, 
as  a  representative  of  a  State  which  I  expect  always  to  remain  in  this  Union, 
to  see  the  Constitution  of  my  country  preserved,  and  the  Union,  if  possible, 
restored,  and  to  see  that  this  attempt  which  is  so  persistently  made  for  the 
elevation  of  the  negro  to  the  level  of  the  white  man,  on  all  occasions,  shall 
not  be  accomplished,  at  least  so  far  as  my  vote  can  tend  to  any  such  result. 

MR.  CAKLILE.  I  desire  to  inquire  of  the  senator  from  Iowa  if  negroes 
constitute  a  part  of  the  militia  of  his  State.  I  know  they  do  not  constitute 
a  part  of  the  militia  of  the  State  in  which  I  live,  and  I  am  not  aware  that 
they  constitute  a  part  of  the  militia  of  any  State  in  this  Union.  The  Presi 
dent  has  the  power  to  call  out  the  militia  of  the  States  to  suppress  insur 
rection,  and  he  is  made  commander-in-chief  of  the  army  and  navy  of  the 
United  States,  and  of  the  militia  of  the  several  States,  when  called  into  the 
actual  service  of  the  United  States.  As  I  caught  the  reading  of  the  amend 
ment,  it  provides  for  enrolling,  as  a  part  of  the  militia,  the  negroes  of  the 
country.  Now,  sir,  who  constitute  the  militia  is  settled  by  the  laws  of  the 
several  States;  *  and  I  hold  that  the  Congress  of  the  United  States  has  no 
power  to  determine  who  shall  compose  the  militia  of  a  State  in  this  Union. 
That  is  a  subject  of  State  regulation,  and  the  power  of  the  commander-in- 
chief,  the  President  of  the  United  States,  does  not  extend,  under  the  Con 
stitution,  beyond  the  calling  out  of  the  militia  of  the  several  States  ;  and 
the  States  themselves  determine  who  shall  compose  that  militia.  I  am  not 
aware  of  any  State  of  the  Union  —  and  I  put  the  inquiry  to  the  senator 
from  Iowa,  for  the  purpose  of  information  —  where  the  negro  constitutes  a 
part  of  the  militia  of  that  State ;  and  if  he  does  not,  by  virtue  of  the 
State  laws,  the  Congress  of  the  United  States  surely  has  no  power,  under  the 
Constitution,  to  determine  who  shall  compose  the  militia  of  a  State  in  the 
Union.  I  differ  with  the  senator  from  Delaware.  I  do  not  think  it  is  an 
effort  to  elevate  the  negro  to  an  equality  with  the  white  man ;  but  the  effect 
of  such  legislation  will  be  to  degrade  the  white  man  to  the  level  of  the 
negro. —  See  Globe,  p.  3198. 

In  a  discussion  which  was  continued  on  the  10th  of  July,  Senator  Col- 
lamer  said,  respecting  the  bill  (384),  "  I  have  not  much  to  say  about  my 

*  This  is  an  error  in  law.  See  18  Am.  Law  Rep.  167,  172;  22  Law  Rep.  477.  Opinion 
of  William  Wirt,  Attorney  General. 

63 


498  NOTES    TO    THE    FORTY-THIRD    EDITION. 

confidence  in  colored  men  making  good  soldiers.  I  do  not  know  much 
about  it.  I  can  only  say  that  we  did  use  them  in  the  last  war  with  Eng 
land,"  &c. 

MR.  TEN  EYCK  moved  to  strike  out  the  words  "  any  military  or  naval " 
before  the  word  "  service.'' 

MR.  KING  replied.  We  may  as  well  meet  this  question  directly,  and  see 
whether  we  are  prepared  to  use  for  the  defence  of  our  country  the  powers 
which  God  has  given  to  it  —  the  men  who  are  willing  to  be  used  to  preserve 
it.  I  hope  the  Senate  will  not  strike  out  these  words,  which  might,  by  con 
struction,  prevent  the  use  of  these  persons  for  military  purposes.  They  are 
now7  in  the  navy,  serving  our  guns  there  ;  and  why  should  we  not  be  at  lib 
erty  to  use  them  in  the  army  ?  It  has  been  said  that  there  is  no  necessity 
for  the  passage  of  a  bill  of 'this  kind  ;  that  the  power  exists  fully,  not  only 
for  the  general  purposes  here  described,  but  to  enlist  them  as  soldiers,  and 
that  it  is  a  matter  of  discretion.  The  difficulty  is  in  the  prejudice  with  which 
a  great  many  minds  take  up  and  contemplate  this  question.  For  my  part, 
I  am  prepared  to  express  my  opinions  upon  it.  The  President,  in  his  mes 
sage  at  the  beginning  of  the  session,  referred  much  of  all  these  subjects  to 
Congress  for  its  opinion.  Congress  has  heretofore  refrained  from  acting 
on  this  point.  I  should  have  been  prepared  to  act  at  a  much  earlier  day, 
but  I  think  the  time  has  come  when  we  may  at  least  express  our  opinion. 
If  the  senator  from  New  Jersey  persists  in  his  motion,  I  shall  want  a  divis 
ion  on  it.  I  hope  he  will  consent  to  let  the  section  stand  as  it  is,  without 
pressing  his  proposition. 

MR.  TEN  EYCK.  My  proposition  is  to  strike  out  the  words  "  any  military 
or  naval "  before  "  service,"  so  that  it  will  read,  "  That  the  President  be, 
and  he  is  hereby,  authorized  to  receive  into  the  service  of  the  United  States, 
for  the  purpose  of  constructing  intrenchments  or  performing  camp  service, 
or  any  other  labor  or  service."  Without  descending  to  particulars,  —  "  any 
other  labor  or  service  for  which  they  may  be  found  competent,  persons  of 
African  descent ;  and  such  persons  shall  be  enrolled  and  organized  under 
such  regulations,"  &c. 

MR.  KING.  Our  opinions  are  expressed,  and  our  wishes  accomplished, 
through  a  great  many  modes  of  action  and  forms  of  expression.  The  sena 
tor  states,  as  I  understand,  that  his  object  is  to  enlarge  the  scope  of  action 
of  these  persons  who  may  be  thus  employed.  In  my  judgment,  the  direct 
effect  is  to  strike  out  these  two  purposes  for  which  these  persons  may  be 
employed  and  used.  There  are  enumerations  of  service,  and,  in  my  opin 
ion,  the  labor  in  the  intrenchments,  the  camp  service,  and  the  various  other 
services  for  which  they  may  be  employed,  ought  to  be  enumerated.  I  think 
they  should  go  into  the  service  to  relieve  our  troops  from  carrying  baggage, 
and  a  great  amount  of  labor  which  is  imposed  on  the  troops.  Our  troops 
should  be  left  free  from  the  performance  of  these  fatiguing  impositions  of 
labor,  that  are  necessary  in  a  camp  and  in  marches,  wherever  it  can  be 
done.  If  that  is  all  these  people  are  wanted  for,  I  am  content ;  but  I  would 
also  expressly  declare  that  they  may  be  used  for  "military  and  naval  pur 
poses."  That  is  the  question  upon  which  doubts  exist,  and  upon  which 
differences  of  opinion  exist.  Nobody  would  object,  probably,  to  their  cook 
ing,  and  yet  but  a  few  of  them  are  used  in  that  way.  One  of  the  difficulties 
in  this  matter  is,  that  these  persons,  when  they  come  to  our  tents  and  our 
camps  for  their  own  safety  and  security,  —  and  everybody  has  a  right  to 
look  to  that,  —  are  now  uncertain  ;  and  we  have  had  no  such  general  decla 
ration  from  any  department  of  the  government  as  can  give  accurate  cer- 


NOTES    TO    THE   FORTY-THIRD    EDITION.  499 

tainty  to  them  as  to  what  is  to  be  their  future  fate.  I  think  it  is  time  we 
had  said  to  these  people,  who  will  take  up  their  arms,  or  who  will  take  up 
their  shovels  and  spades  and  their  hoes,  or  who  will  buckle  the  knapsacks 
of  our  soldiers  on  their  shoulders,  and  carry  them,  that  they  who  will  come 
to  do  this  service  shall  be  free.  The  time  has  come  to  say  that,  or  to  say 
that  it  shall  not  be  so.  Let  us  be  men,  and  treat  these  people  as  men ;  and 
let  us  understand  where  we  are,  and  what  is  the  decision  of  this  country 
upon  these  subjects. 

We  have,  in  my  judgment,  nothing  to  fear  from  our  enemies  on  account 
of  the  expression  of  our  views  on  this  point.  All  we  have  to  fear  is  from 
timid  counsels,  that  hesitate  to  pronounce  what  are  really  the  sentiments 
and  opinions  of  the  country.  The  justice  of  God  must  be  sustained  by  a 
government  and  its  people,  or  it  cannot  stand.  What  is  just  and  right  in 
this  matter  ?  Let  us  not  fear  to  say  it ;  let  us  not  fear  to  proclaim  it ;  let 
us  not  go  behind  any  form  of  words,  by  declaring  that  this  thing  is  not 
necessary ;  that  this  power  exists  ;  that  it  is  already  in  the  power  of  the 
President  to  do  this.  The  President  has  not  done  it.  I  find  no  fault  with 
him.  I  make  no  complaint,  and  I  should  not  have  made  this  allusion,  ex 
cepting  that  it  is  presented  here  as  an  obstacle  to  an  expression  of  our  sen 
timent  on  the  subject.  If  the  senator  from  New  Jersey  persists  in  this 
amendment,  I  regard  it  as  one  which,  by  its  very  effect  and  construction, 
declares  it  as  the  judgment  of  the  Senate  that  these  military  and  naval  pur 
poses  ought  not  to  be  enumerated  or  mentioned  among  the  purposes  for 
which  these  persons  may  be  employed.  The  senator  may  put  "  all  other 
services,''  if  he  pleases  ;  he  may  put  in  any  words,  enlarging  it  to  his  heart's 
content ;  but  I  do  not  want  to  restrain  it.  —  Globe,  p.  3228. 

MR.  KING.  The  words,  as  the  senator  suggests,  were  modified  by  author 
ity  of  the  mover,  and  not  by  a  vote  of  the  Senate  :  but  that  makes  no  dif 
ference.  It  was  a  change  of  the  original  language  from  the  word  "  war  "  to 
"  military  or  naval." 

MR.  DOOLITTLE.  Of  all  things  I  dislike  ambiguity  in  any  law  passed 
by  Congress.  I  desire  that  it  shall  state  clearly  what  is  intended,  and  no 
more.  As  to  the  employment  of  either  Indians  or  negroes  in  the  service  of 
the  United  States,  the  course  pursued  by  the  commanders  of  the  rebel  forces 
against  the  government  of  the  United  States,  makes  it  perfectly  justifia 
ble  in  us  to  employ  them  in  any  capacity  for  which  they  are  competent,  in 
the  progress  of  this  war.  They  have,  beyond  all  question,  employed  Indian 
savages  as  a  part  of  their  armed  forces.  We  should  be  perfectly  justifiable 
in  authorizing  the  President  to  employ  Indians  against  the  rebels.  So,  too, 
in  relation  to  the  employment  of  negroes.  We  have  been  informed  —  and 
I  think  we  cannot  be  mistaken  —  the  traitors  in  arms  against  us  have  em 
ployed  negroes,  not  only  upon  intrenchments  and  in  camp  service,  but  have 
organized  and  have  put  arms  in  their  hands,  to  shoot  down  our  sons  and 
our  brothers  on  the  field  of  battle.  Such  being  the  fact,  it  is  justifiable  on 
the  part  of  the  government  of  the  United  States,  by  every  rule  of  honorable 
warfare,  to  authorize  the  President,  if  in  his  judgment  it  shall  become 
necessary,  to  employ  them,  and  even  to  arm  them.  .  . 

The  further  power  of  arming  them  is  in  the  discretion  of  the  President, 
where  it  can  be  most  safely  lodged.  They  were  employed  to  some  extent 
in  the  revolution,  and  in 'the  last  war  with  Great  Britain.  They  are  em 
ployed  by  the  wicked  leaders  of  this  rebellion  against  us  now.  "  While  I 
would  be  the  last  to  sanction  a  departure  from  the  rules  of  civilized  war 
fare,  we  cannot  be  condemned  in  our  own  consciences,  nor  before  the  civil 
ized  world,  if  we  employ  the  same  class  of  persons  to  fight  against  the 
rebels  which  they  employ  against  us,  &c. 


500  NOTES    TO    THE   FORTY-THIRD    EDITION. 

The  motion  to  strike  out  "  any  military  or  naval  service,"  was  put,  July 
10,  1862,  and  negatived.  Yeas  11,  nays,  27.—  Globe,  p.  3231. 

MR.  SAULSBURY.  As  the  yeas  and  nays  have  been  ordered  on  this  ques 
tion,  I  wish  to  say  that  I  shall  decline  voting  on  it,  although  the  amend 
ment  seems  just ;  but  as  it  recognizes  the  employment  of  negroes  in  the 
army  of  the  United  States,  and  as  I  am  opposed  to  the  whole  principle,  I 
cannot  vote  for  the  amendment ;  neither  can  I  vote  for  the  original  propo 
sition.  —  Globe,  p.  3232. 

MR.  GRIMES.  The  necessity  which  exists  for  this  provision  grows  out  of 
the  fact  that  there  is  no  method  of  paying  these  persons  without  the  pas 
sage  of  such  a  law  as  this ;  and  colored  persons  who  have  been  enrolled  in 
the  military  service  of  the  United  States,  or  in  some  of  the  collateral 
branches  of  the  public  service,  are  being  disbanded,  because  of  the  want  of 
such  a  provision. 

MR.  HENDERSON.  That  is  just  the  difficulty.  I  do  not  want  these  slaves 
enrolled  in  the  military  service.  I  voted  against  that  proposition.  I  do  not 
want  them  taken  into  the  service  and  used  as  soldiers  at  all.  I  do  not  be 
lieve  that  they  will  help  you  any.  That  is  my  opinion  about  it.  I  am  sat 
isfied  that  they  will  not.  In  the  first  place,  they  know  nothing  of  the  use 
of  arms  ;  and,  in  the  second  place,  if  you  have  to  wait  to  instruct  negroes 
in  the  use  of  arms,  and  in  the  discipline  necessary  to  make  good  soldiers, 
before  you  strike  at  this  rebellion,  let  me  tell  you  the  rebellion  is  a  success. 
That  is  all  I  desire  to  say  in  reference  to  that.  As  a  question  of  policy,  I 
think  the  matter  is  against  you ;  as  a  question  of  expediency,  I  think  the 
matter  is  against  you. 

But,  sir,  there  are  many  things  they  can  do.  They  can  use  the  spade ; 
they  can  use  the  hoe  ;  they  can  use  the  pick ;  and  they  can  drive  wagons. 
For  all  these  matters,  except  military  service,  it  is  perfectly  competent  now 
for  the  quartermaster's  department  to  take  them.  I  say  I  would  use 
them,  and  require  the  quartermaster's  department,  under  the  general  ap 
propriation  bill,  to  pay  for  their  service  and  labor,  and  I  am  frank  to  say 
the  loyal  slaveholders  will  sustain  me  in  it.  I  would  use  them  wrherever  I 
could  use  them  to  put  down  the  rebellion ;  not  as  soldiers,  because  I  be 
lieve  —  I  know  you  differ  with  me  —  that  they  will  do  you  no  good.  I 
believe  that  for  every  good  soldier  you  would  get  among  them,  you  will 
lose  a  white  man,  who  will  be  driven  off  by  his  prejudices  against  legisla 
tion  of  this  character.  I  may  as  well  be  frank.  I  may  as  well  tell  you  what 
I  believe.  I  think  the  day  has  come  when  it  is  absolutely  essential  for  men 
to  talk  out,  and  say  what  they  believe  and  what  they  know  in  reference  to 
this  thing.  These  are  my  opinions.  I  give  them  frankly.  I  am  aware  that 
gentlemen  do  not  agree  with  me. 

Now,  sir,  how  many  negroes  are  you  going  to  take  ?  How  many  do  you 
want  ?  This  bill  will  give  you  the  right  to  take  all  the  slaves.  Suppose  the 
government  makes  a  mistake,  and  gets  the  slave  of  a  loyal  man.  Then,  I 
say  the  loyal  man  ought  to  be  paid  for  the  slave.  It  would  be  wrong  to 
turn  him  loose.  If  it  is  necessary,  go  and  take  the  slaves  of  loyal  men, 
and  use  them  in  building  fortifications.  They  have  been  so  used.  I  know 
plenty  of  loyal  men  in  Missouri  who  have  taken  their  negroes  and  made 
them  do  service  in  that  way  in  favor  of  the  Union.  Shall  that  make  them 
free  ?  Are  you  going  to  legislate  them  free  in  consequence  of  that  act  ? 
I  say,  No  !  It  is  an  institution  recognized  by  State  law,  and  it  is  not  for  us 
to  tear  down  that  institution  which  has  been  recognized  by  the  people  of 
the  State,  the  only  persons  properly  having  jurisdiction  over  it. 

Now,  how  many  do  you  want  ?      I  believe  there  are  nearly  four  million 


NOTES    TO    THE   FORTY-THIRD    EDITION.  501 

slaves  in  the  country.  There  are  half  a  million  of  them  in  the  non-seceding 
States;  perhaps  no't  over  four  hundred  and  twenty -five  thousand.  You 
can  get  just  as  many  of  them  as  you  want  to  pay  for.  You  can  get  ten 
times  as  many  as  you  want  in  the  seceding  States.  You  can  get  all  you 
desire  to  put  into  the  service  under  this  law ;  or  under  the  law  as  I  propose 
to  amend  it,  you  may  take  the  slaves  of  every  rebel  in  my  own  State.  How 
many  do  you  suppose  the  adoption  of  my  amendment  will  exclude  you  from 
taking  ?  Some  gentlemen  say,  Why  not  give  us  the  slaves  of  loyal  men  in 
the  border  slaveholding  States  ?  At  the  first  blush  it  does  look  to  be  a 
matter  of  justice  ;  but  how  much  do  you  get  by  it?  Let  me  tell  you,  a  loyal 
man  will  feel  rather  badly  to  have  his  slave  taken  by  the  President  of  the 
United  Stales,  and  put  into  the  army  by  his  side.  He  may  tolerate  a  great 
deal  better  the  taking  of  the  slave  of  the  rebel,  but  he  will  not  like  to  have 
his  own  slave  taken  from  home,  when  he  himself  is  fighting  the  battles  of 
the  country  ;  and  nearly  every  man  in  the  border  slaveholding  States  is  so 
engaged.  They  all  have  to  do  it  once  in  a  while.  Nearly  all  of  them  have 
been,  or  are  now,  in  the  service.  A  loyal  man  in  one  of  those  States  will  dis 
like  very  much  to  have  his  slave,  whom  he  left  at  home  attending  to  his  family, 
brought  into  the  service  ;  and  I  think  the  slave  himself  would  like  it  much 
more  if  you  would  leave  him  at  home,  where  his  master  left  him,  and  where, 
in  ninety-nine  cases  out  of  a  hundred,  he  would  be  better  off  than  if  you 
enlisted  him  and  took  him  away.  That  is  my  opinion,  and  hence  it  is  that  I 
propose  this  amendment ;  and  I  hope  it  may  be  adopted.  By  rejecting  my 
amendment  you  will  not  get  one  hundred  slaves,  including  the  old  and 
infirm,  children,  and  everybody  else.  You  have  as  many  slaves  as  you 
want ;  you  have  as  many  persons  of  color  as  you  desire  throughout  the 
broad  expanse  of  these  seceding  States.  —  Globe,  3232. 

MR.  LANE,  of  Kansas.  I  can  imagine  a  case  like  this,  and  I  think  we 
shall  find  thousands  of  them,  at  the  close  of  this  rebellion,  under  this  law, 
believing  that  it  will  pass.  A  slave  is  enlisted  in  the  service  of  his  country ; 
he  fights  bravely  and  gallantly,  and  I  believe  as  bravely,  as  gallantly,  and  as 
skilfully,  as  the  white  man ;  and  I  take  this  occasion  to  say,  that  the  state 
ment  of  the  senator  from  Missouri,  that  the  slaves  of  Missouri  are  not  used 
to  the  gun,  is  a  mistake,  to  say  the  least  of  it.  The  slaves  that  I  saw  in 
Missouri  were  skilful  in  the  use  of  the  gun,  and  I  had  twelve  hundred  of 
them  at  one  time  within  my  brigade.  But  to  continue  my  illustration  : 
after  this  war  is  over,  a  soldier,  perhaps  covered  with  scars,  his  mother, 
wife,  and  children  around  him,  —  having  escaped,  or  their  masters  escaped 
from  them,  —  are  in  Washington  city.  I  say  that  the  government  that 
would  restore  that  mother,  that  wife,  and  those  children  to  slavery,  after 
that  father  and  husband  has  been  covered  with  wounds  in  defence  of  the 
country,  deserves  to  be  damned.  I  deny  that  this  government  cannot 
take  the  slaves  of  the  loyal  and  the  disloyal,  and  that  they  are  estopped 
from  making  any  use  of  them  that  they  choose  for  the  suppression  of  this 
rebellion  ;  and  having  made  use  of  them,  I  say  it  would  be  a  crime  before 
God  to  return  them  to  slavery.  —  Globe,  p.  3235. 

MR.  HALE.  I  would  a  great  deal  rather  meet  that  form  of  question  by 
paying  the  loyal  owner  of  slaves,  or  the  loyal  person  who  claims  to  be  their 
owner,  compensation  for  those  that  might  be  freed  under  the  operation  of 
this  act,  than  to  put  in  such  an  amendment  as  that.  I  cannot  imagine  a 
human  being  (and  there  are  some  people  fanatical  enough  to  believe  that 
colored  men  are  human  beings)  in  a  worse  situation  than  you  would  put 
him  in  by  the  operation  of  this  bill,  thus  amended.  You  put  him  into  your 
Federal  army,  and  rely  upon  his  aid  for  success ;  and  if  he  thinks  at  all, 
he  must  think  that  his  success  will  be  the  perpetual  enslavement  of  his  wife 
and  children.  —  Globe,  3249. 


502  NOTES    TO    THE    FORTY-THIRD    EDITION. 

MR.  COWAN.  I  think  the  method  proposed  by  the  senator  from  New 
Hampshire  would  be  a  very  expensive  way  of  "  procuring  soldiers."  It  ap 
pears,  according  to  his  plan,  that  when  a  negro  slave  enters  your  army,  either 
as  a  laborer  or  as  a  soldier,  immediately  on  his  performing  service,  his  wife, 
his  mother,  and  his  children  are  entitled  to  their  freedom  ;  and  if  they  be 
long  to  loyal  people,  the  government  will  pay  for  them.  Now  let  us  see  at 
what  cost  we  should  achieve  the  service  of  one  negro  on  this  plan.  He  may 
have  a  mother;  what  is  she  worth?  That  is  the  question.  Put  her  down  at 
five  hundred  dollars,  if  you  please.  He  has  a  wife  ;  what  is  she  worth  ?  Put 
her  down  at  five  hundred  dollars.  He  has  children  ;  what  are  they  worth  ? 
That  will  depend  upon  the  number  he  has,  and  their  ages  and  their  value. 
But  without  counting  the  children,  here  is  one  thousand  dollars  to  be  paid 
as  a  bounty  over  and  above,  to  "  get  a  negro  soldier  into  the  American 
army."—  Globe,  p.  3249. 

If  the  President  has  refused  to  adopt  the  counsels  of  certain  people  in 
regard  to  arming  the  slaves,  and  all  this  kind  of  thing,  and  they  want  to 
compel  him  into  that  course,  and  to  compel  him  through  the  channels  of 
legislation,  I  would  write  it  down.  I  would  approach  him  at  least  as  a 
man,  and  I  would  not  undertake  to  do  it  under  cover  of  this  kind  of  law.  — 
Globe,  p.  3250. 

MR.  HOWE.  .  .  .  The  senator  from  Pennsylvania  says,  if  it  is  desirable 
to  have  the  black  population  in  the  service  of  the  United  States  at  all,  the 
States  organize  their  own  militia,  and  they  may  be  called  into  the  service 
by  the  action  of  the  States  themselves.  Now,  sir,  we  all  know  that  the 
militia  of  the  States  do  not  comprise  in  their  organization  the  blacks  of  the 
country.  It  is  the  white  population  alone,  so  far  as  I  know,  in  any  State  of 
the.  Union,  who  are  organized  as  militia.  I  am  not  aware  of  a  single  State 
in  which  the  black  population  are  organized  in  the  militia.  —  Globe,  p.  3251. 

MR.  COWAN.  Then  my  friend  will  allow  me  to  ask  him  if  they  are  not 
in  the  militia,  as  the  militia  comes  from  the  States  when  we  call  upon  it, 
where  are  these  people  to  go  except  into  the  regular  army  ?  And  I  wish 
to  follow  that  by  this  further  question,  whether  there  is  any  restriction  now 
on  the  Executive  to  put  them  in  the  regular  army?  —  Globe,  p.  3251. 

MR.  KING.  The  senator's  inquiry  shows  that  he  is  not  aware  of  any 
mode  in  which  we  can  get  service  from  these  people  without  some  action  of 
law.  It  is  for  that  very  reason  that  there  is  not  sufficient  provision  of  law 
to  enable  the  astute  and  excellent  lawyer  from  Pennsylvania  to  determine 
how  these  persons  shall  be  got  into  the  service  that  he  asks  me  the  ques 
tion,  because  he  does  not  know  himself.  This  bill  provides  for  bringing  this 
black  population  into  the  service  of  the  United  States,  —  not  as  the  militia, 
not  as  the  regular  army,  but  it  provides  a  special  mode  in  which  they  shall 
come  •  in  ;  and  it  is  because  of  the  peculiar  condition  of  the  country  at  this 
time  that  there  is,  in  my  judgment,  a  special  propriety  in  calling  them  into 
the  service.  Mr.  President,  the  mangled  corpses  of  thousands  of  our  young 
men  sunk  in  the  marshes  of  the  Chickahominy  and  other  localities  in  the 
Southern  States,  cry  to  us  for  some  mode  by  which  those  who  are  to  come 
after  them  shall  be  relieved  from  the  diseases  and  death  which  have  fallen 
upon  them  in  the  defence  of  their  country.  Do  we  not  know  —  is  there  a 
question  about  it  in  the  min-d  of  any  man  —  that  the  pestilential  atmosphere 
of  these  low  grounds  and  marshes  is  more  dangerous  to  our  men  than  the 
bullets  and  bayonets  of  the  enemy  ?  In  my  judgment,  there  is  no  danger 
to  this  country  from  bullets  and  bayonets.  These  infamous  insurgent  en 
emies  who  are  now  attempting  to  destroy  the  Constitution  and  the  country, 
rely  upon  the  climatic  influences  as  a  means  of  security.  .  .  . 


NOTES    TO    THE   FORTY-THIRD    EDITION.  503 


But  it  is  not  to  call  the  black  population  from  the  free  States  that  this 
bill  is  to  provide,  or  is  necessary.  We  find  in  the  insurgent  States  thou 
sands  and  tens  of  thousands  of  willing,  strong,  hardy  men,  anxious  to  serve 
this  country,  and  to  do  what  is  more  dangerous  for  our  men  than  to  fight,  — 
to  dig  in  the  trenches,  to  do  the  labor  of  our  army.  Should  we  refuse  to 
have  that  done  upon  some  question  and  quibble  of  authority  or  of  law,  or 
of  who  may  exercise  this  power  ?  I  trust  not.  The  whole  scope  and  ob 
ject  of  this  provision  is  to  enable  us  to  bring  these  people  into  the  service, 
and  to  relieve  the  country,  the  army,  and  us  all  from  this  kind  of  doubt  and 
difficulty  that  the  senator  from  Pennsylvania  himself  has  suggested,  as  to 
how  this  thing  can  be  done.  This  bill  provides  how  it  shall  be  done. 

Mr.  President,  shall  we  bring  these  people,  in  this  condition  of  things  in 
the  country,  into  the  public  service,  and  not  guarantee  to  them  their  liberty  ? 
Why,  sir,  we  should  hardly  deserve  their  services,  if  after  they  had  pre 
served  our  rights  and  our  liberties  we  could  return  them  into  slavery.  It 
would  be  unworthy  a  Christian  or  a  pagan  people  to  do  so.  Let  us  meet 
this  question  fairly  and  frankly,  and  say  to  those  who  shall  come  to  our  aid, 
that  they  shall  have  the  benefits  which  the  shedding  of  their  own  blood  se 
cures  to  us,  and  that  it  shall  secure  the  same  to  them.  It  was  so  in  the 
revolution.  Let  us  meet  this  question  like  men.  If  the  Senate  or  the 
country  is  prepared  to  say  that  we  will  not  have  these  services,  let  that  be 
said,  though  it  is  much  against  my  opinion,  but  let  us  understand  this  mat 
ter.  Let  us  know,  and  let  our  young  men  know,  when  we  are  calling  upon 
them  to  come  into  the  service,  whether  we  are  willing  to  respond  and  give 
them  every  aid  in  our  power  when  we  call  upon  them  to  come  and  meet  the 
double  dangers  of  disease  and  battle.  I  say  it  is  our  highest  duty  to  pro 
vide  every  means  in  our  power  to  protect  them  in  their  health  and  in  their 
comfort,  as  well  as  in  their  lives  ;  and.  in  my  judgment,  this  bill  is  most 
essential  and  desirable  for  the  safety  and  security  of  the  country. 

Now,  the  question  arises  in  the  case  of  the  negro,  Can  you  put  him  into 
your  army  ?  Can  you  drill  him  and  discipline  him  so  as  to  make  him  re 
spect  the  laws  of  civilized  warfare,  as  our  people  do,  as  white  people  do  ? 
Will  he,  in  the  hour  of  victory,  be  clement  ?  Will  he  give  quarter  when 
quarter  is  demanded  ?  Will  he  make  war  upon  women  or  children,  or  will 
he  make  war  only  upon  combatants  ?  These  are  the  questions.  Then,  the 
next  difficulty  which  occurs  is,  Who  shall  decide  that  question  ?  In  whose 
hands  is  it  to  be  decided  ?  Is  it  to  be  decided  by  the  Congress  of  the 
United  States  ?  I  say  emphatically,  No.  I  say,  this  Congress  to-day  is  in 
capable  of  deciding  the  question.  I  say,  my  honorable  friend  from  New 
York,  or  myself  either,  knows  nothing  at  all  about  it.  If  we  were  generals 
in  the  field,  if  these  people  were  brought  before  us,  if  we  were  to  inspect 
them  and  try  them  for  a  time,  then  we  might  decide  it.  It  is  a  question  of 
fact,  which  the  legislation  of  no  country,  I  think,  can  determine.  There 
fore  it  is  a  question  that  devolves  on  the  Executive  to  determine. 

MR.  RICE.  During  the  revolutionary  war,  the  legislature  of  Rhode  Is 
land  authorized  the  enlistment  of  negroes  and  Indians. 

MR.  COWAN.  That  may  all  be.  I  have  nothing  to  say  against  that. 
The  legislature  of  Rhode  Island  may  have  done  a  great  many  things,  and 
done  them  very  properly.  I  do  not  undertake  to  say  they  have  not ;  but  I 
do  undertake  to  say,  when  the  question  comes  up  in  this  country,  it  is  a 
question  of  fact  to  be  determined  by  the  executive  branch  of  the  govern 
ment,  and  not  by  the  legislative  branch  of  this  government.  If  the  Presi 
dent  and  his  generals  are  of  opinion  that  he  can  take  these  men,  enlist  them 
in  our  armies,  regulate  them,  subject  them  to  the  rules  of  discipline  as  our 


504  NOTES    TO    THE    FORTY-THIRD    EDITION. 


own  people  are,  then  I  have  said  here  openly,  that  he  should  do  it ;  but  as 
I  do  not  know  whether  he  can  or  not,  and  it  is  for  him  to  decide,  under  the 
Constitution,  I  will  leave  that  question  to  him.  —  Globe,  p.  3251. 

MR.  GRIMES.  Is  it  not  the  law  of  the  United  States  which  declares  that 
they  shall  be  white  ? 

MR.  COWAN.  No,  sir,  it  is  not.  I  do  not  know  of  anything  in  the  Con 
stitution  of  the  United  States  that  requires  the  militia  to  be  white. 

MR.  SUMNER.     That  is  the  law  of  Congress. 

MR.  GRIMES.  The  laws  of  the  States  in  relation  to  the  militia  are  made 
in  pursuance  of  the  law  of  Congress,  which  declares  that  the  militia  shall 
be  composed  of  white  persons. 

MR.  COWAN.  Not  necessarily  so  at  all.  Each  State,  in  its  own  separate 
individual  capacity,  has  a  right  to  organize  its  own  militia,  beyond  all  ques 
tion,  and  they  have  done  so  repeatedly  all  over  the  country  ;  and  when  so 
organized  under  the  State  laws,  the  general  government  has  a  right  to  call 
upon  them,  and  they  have  the  right  to  send  them,  and  to  send  them  with 
men,  officers,  and  equipage. 

MR.  SUMNER.  If  the  senator  will  allow  me,  I  will  read  to  him  one  sen 
tence  from  the  statute  of  1792,  on  the  organization  of  the  militia.  It  is  as 
follows  :  — 

•'  Each  and  every  free  able-bodied  white  male  citizen  of  the  respective 
States  resident  therein,  who  is  or  shall  be  of  the  age  of  eighteen  years  and 
under  the  age  of  forty-five  years,  except  as  hereinafter  excepted,  shall  sev 
erally  and  respectively  be  enrolled  in  the  militia  by  the  captain  or  com 
manding  officer  of  the  company  within  whose  bounds  such  citizen  shall  re 
side,  and  that  within  twelve  months  after  the  passage  of  this  act." 

That  is  the  foundation  of  the  military  system  of  the  United  States. 

MR.  COLLAMER.     If  the  gentlemen  will  allow   me   a   moment   on   this 
point  about  the  organization  of  the  militia,  I  wish  to  read  what  the  Consti 
tution  says  about  if.     Among  the  powers  of  Congress  is  the  following  :  — 

"  To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  reserving  to  the  States  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress." 

Congress,  under  this  authority  of  the  Constitution,  passed  the  law  to 
which  the  senator  from  Massachusetts  has  referred.  The  organization  of 
the  militia  is  not  left  to  the  St-ites.  It  is  an  organization,  under  the  Con 
stitution,  by  act  of  Congress.  —  Globe,  p.  3252. 

MR.  COWAN.  The  volunteers,  then,  that  are  called  from  the  States,  are 
the  militia  of  the  States,  and  come  with  their  own  organizations  and  their 
own  officers.  The  senator  from  New  York  said  this  law  provided  for  that ; 
but  I  ask,  is  this  law  intended  to  provide  for  the  organization  of  negroes 
into  the  militia  of  the  several  States  ?  Is  that  the  object  ? 

MR.  KING.  I  will  read  the  clause.  It  says  they  are  to  be  employed  "  in 
the  service  of  the  United  States.  They  are  to  dig  trenches  and  fight  the 
rebels.  They  are  to  be  organized,  fed,  and  paid  for  to  do  that  work." 

MR.  COWAN.    If  that  is  all,  then  we  are  left  just  about  as  wise  as  at  the  start. 

MR.  KING.     I  thought  so. 

MR.  COWAN.  The  law,  then,  provides  for  nothing.  It  provides  that 
they  may  be  taken  into  the  service  of  the  United  States. 

MR.  KING.  If  the  senator  will  allow  me,  it  provides  for  a  good  deal, 
and  precisely  what  I  desire  this  bill  should  do,  —  that 'they  may  dig  our 
trenches,  perform  labor  in  the  camps,  and  fight  the  enemies  of  the  Union, 
the  insurgents  and  rebels.  —  Globe,  p.  3252. 


NOTES   TO    THE   FORTY-THIRD    EDITION.  505 

MR.  COWAN.  .  .  .  Because  you  do  not  agree  as  to  how  the  army 
shall  be  organized,  you  do  not  want  the  army  to  be  effective !  It  is  a  non 
sequitur,  and  nobody,  I  should  think,  except  an  orator  in  some  country  de 
bating  school,  would  ever  think  of  resorting  to  it  as  a  means  to  foil  an 
antagonist.  I  want  the  army  to  be  made  effective,  just  as  much  effective  as 
anybody,  and  I  say  I  never  heard  any  objection  on  the  part  of  anybody,  that 
slaves  should  dig  our  intrenchments  and  do  the  work  they  can  do  in  the 
camp.  I  never  heard  anybody  object  to  that,  but  there  is  an  objection  to 
making  soldiers  of  them.  —  Globe,  p.  3252. 

MR.  COWAN.  .  .  .  But,  as  I  said  before,  that  is  not  the  question.  The 
question  is,  whether  we  will  employ  negroes  in  our  armies,  and  in  our  regular 
army,  because  I  know  you  can  place  them  nowhere  else,  unless  you  make  a 
new*  law  specifically  authorizing  the  militia  to  be  composed  of  them,  which  I 
think  would  be  exceedingly  mischievous.  If  you  alter  your  law  so  as  to  put 
the  negroes  of  the  free  States  in  the  militia  of  those  States,  you  will  not  get 
a  white  man  to  come  here.  I  do  not  think  you  will  get  a  man  from  the  free 
States  to  come  in  a  company  here  if  negroes  are  to  come  along  with  him  in 
that  same  company  ;  and  these  men  love  their  country,  and  are  just  as  willing 
to  do  as  much  for  it  as  we  are  now.  Then,  I  say,  unless  you  alter  that  law 
so  as  to  authorize  them  to  be  put  in  the  militia,  there  is  nowhere  else  they 
can  be  put  except  in  the  regular  army  ;  and  to  that  there  is  now  no  imped 
iment  by  any  law  of  this  republic.  The  President  has  full  and  entire  au 
thority  over  that  subject.  When  a  negro  comes  up  to  enlist,  there  is  the 
same  right  to  strip  and  examine  him,  and  determine  whether  he  shall  be  put 
into  that  company  through  the  medium  of  his  recruiting  officers,  as  there  is 
to  enlist  a  free  white  citizen.  Whether  the  President  would  permit  this  is 
another  thing,  but  it  is  with  him  in  the  exercise  of  his  judgment.  He  must 
decide  it,  because  it  presents  the  question  of  a  race  in  that  attitude  to  other 
civilized  races,  for  we  cannot  determine  it.  I  therefore  propose  to  intrust 
it  to  him.  He  is  as  anxious  as  we  are,  of  course,  to  suppress  this  rebellion  — 
perhaps  more  so.  He  has  more  cares  in  regard  to  it  than  we  have.  I  have 
the  greatest  confidence  in  his  wisdom,  his  prudence,  his  moderation,  and 
his  desire  to  do  it  with  an  eye  to  the  restoration  of  the  Union.  —  Globe, 
p.  3253. 

MR.  WILKINSON.  It  seems  to  me  like  madness  to  refuse  or  to  undertake 
to  reject  this  offer  because  we  cannot  find  a  place  where  to  put  these  men  on 
the  statutes,  whether  we  regard  them  as  militia  men  or  regular  army  men. 
Put  them  into  the  ranks.  General  Washington  found  no  difficulty  on  that 
point.  —  Globe,  p.  3254. 

MR.  DAVIS.  The  particular  and  interesting  question  before  the  Senate  is 
this  :  Shall  the  President  of  the  United  States  be  authorized  by  this  bill  to 
arm  the  negro  slaves  of  the  United  States  ?  —  Globe,  p.  3255. 

_  MR.  DAVIS.  The  honorable  senator  from  Iowa  (Mr.  Harlan)  in  the  be 
ginning  of  his  speech  gave  a  clear,  concise,  and  able  resume  of  the  events 
of  this  war  of  rebellion,  and  an  equally  clear  statement  of  its  present  condi 
tion.  He  showed  that  everywhere  the  rebellion  was  yielding,  and  how  cer 
tainly  the  arms  of  the  United  States  were  overcoming  and  would  certainly 
crush  it  out.  That  portion  of  his  argument  conclusively  demonstrates  this 
measure  of  arming  the  slaves  to  be  wholly  unnecessary,  and  that  if  it  is  done 
it  will  only  be  for  the  purpose  of  bloody,  cruel,  and  shocking  vengeance 
against  the  seceding  States,  and  in  utter  recklessness  of  the  great  misery  it 
will  bring  down  upon  the  Union  people  of  the  border  States.  —  Globe, 
p.  3257. 

MR.  WILSON,  of  Massachusetts,  from  the  committee  on  military  affairs 
and  the  militia,  reported  a  bill  (S.,  No.  394)  to  amend  the  act  calling  forth 

64 


506  NOTES    TO  THE   FORTY-THIRD    EDITION. 

the  militia  to  execute  the  laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions,  approved  February  28,  1795,  and  the  acts  amendatory  thereof, 
and  for  other  purposes  ;  which  was  read  twice  by  its  title  and  ordered  to  be 
printed.  —  Globe,  p.  3289. 

A  proposal  had  been  made  as  follows  :  "  And  they  shall  be  fed  and 
clothed,  and  paid  such  compensation  for  their  services  as  they  may  agree  to 
receive  when  enrolled." 

It  was  moved,  July  14,  to  strike  out  this  clause,  and  the  payment  to  be 
ten  dollars  per  month,  three  dollars  of  which  monthly  pay  may  be  in  cloth 
ing.  This  was  adopted. 

July  15  the  discussion  continued,  it  being  upon  the  question  of  giving 
freedom  to  those  who  had  been  in  the  service. 

MR.  LANE,  of  Kansas.  I  desire  now  to  make  a  statement  to  the  senator 
from  Ohio.  He  was  not  in  when  I  was  up  before.  There  is  a  practical 
difficulty  in  adopting  the  amendment  he  has  offered  if  we  propose  to  use  the 
slaves.  We  propose  to  use  them  in  fighting.  We  have  in  Kansas,  as  re 
ported  to  me,  six  thousand  four  hundred  slaves.  Out  of  this  number  we 
expect  to  get  two  regiments  of  infantry.  A  large  portion  of  these  slaves  be 
long  to  loyal  masters.  I  undertake  to  say  that  one  third  of  these  slaves 
belong  to  loyal  masters.  The  idea  of  organizing  these  men  into  regiments, 
inducing  them  to  fight  for  the  country  and  against  its  enemies  bravely,  as  I 
believe  they  will  fight,  and  after  they  have  rendered  the  service,  returning 
them  to  slavery,  is  to  me  an  outrage  that  the  senator  from  Ohio  would  not 
in  any  wise  indorse.  After  they  have  fought  bravely  for  freedom,  for  the 
maintenance  of  the  government,  to  return  them  to  slavery  is  monstrous. 
By  the  proposition  that  I  make,  the  loyal  citizen  is  not  wronged.  We  use 
the  slave,  and  we  free  him  as  did  our  fathers  in  the  revolution,  and  as  they 
did  in  the  war  of  1812,  and  if  the  masters  are  loyal  we  will  remunerate  them 
for  the  loss  of  the  slaves.  No  incentive  can  be  offered  to  men  that  will  in 
duce  them  to  fight  more  desperately  than  their  freedom.  You  say  to  them 
that  they  are  to  return  to  slavery  after  the  war  is  over,  and  there  is  no  in 
centive  for  them  to  fight.  If  you  propose  to  use  these  negroes  as  soldiers, 
the  proposition  of  the  senator  from  Ohio  destroys  the  probability  of  making 
them  useful  as  soldiers.  Slaves  of  loyal  and  disloyal  masters  come  away 
together :  they  cannot  be  separated  ;  and  you  throw  in  among  regiments  men 
who  have  no  incentive  to  fight,  but  the  contrary.  It  seems  to  me  that  the 
government  which  will  return  to  slavery  a  man  who  has  fought  for  its  de 
fence  deserves  the  frowns  of  the  Almighty.  —  Globe,  p.  3337. 

MR.  HOWARD.  ...  It  seems  to  me  that  if  I  were  a  slaveholder,  I 
could  not  bear  the  idea  of  employing  or  suffering  my  slaves  to  be  employed 
in  defending  me  and  my  rights  as  a  loyal  man,  taking  arms  in  their  hands 
and  going  with  me  into  the  face  of  the  battle,  and  risking  their  lives  to  de 
fend  my  life,  and  my  family,  and  my  rights  under  my  government,  and  after 
wards  reducing  those  poor  creatures  to  slavery.  .  .  . 

MR.  HARLAN.  I  do  not  think  an  individual,  a  slave  that  may  have  been 
armed  and  mustered  into  the  service  of  the  United  States,  will  ever  again 
be  fit  for  slavery.  I  think  that  is  the  history  of  the  whole  world  on  this  sub 
ject.  I  do  not  remember  a  single  example,  since  civilization  commenced, 
when  slaves  have  been  mustered  into  the  armed  service  of  a  country,  and 
again  attempted  to  be  returned  to  slavery.  .  .  .  —  Globe,  p.  3339. 

MR.  HARLAN.     We  propose  to  enlist  these  colored  men,  and  put  them  in 


NOTES    TO    THE    FORTY-THIRD    EDITION.  507 

the  trenches  to  dig  ditches  and  erect  fortifications ;  and  when  found  neces 
sary,  and  when  the  parties  are  found  competent,  to  arm  them  in  the  defence 
of  the  country.  —  See  Supplement  to  Globe  (July  11,  1862),  p.  313. 

These  debates  resulted  in  the  passage  of  the  act  of  July  17,  1862  (Chap. 
201)  (See  No.  394),  and  was  entitled  "  An  Act  to  amend  the  act  calling  forth 
the  militia  to  execute  the  laws  of  the  Union,  suppress  insurrection,  and  repel 
invasion  (approved  February  28,  1795),  and  the  acts  amendatory  thereof,  and 
for  other  purposes."  Is  it  possible  that  any  one  could  read  the  extracts 
above  quoted  from  the  speeches  of  so  many  eminent  senators,  every  one  of 
whom  argued  for  or  against  this  proposed  law  on  the  ground  that  it  was  for 
the  express  purpose  of  making  soldiers  out  of  slaves  and  persons  of  color, 
and  then  deny  or  doubt  that  the  act  was  intended  for  that  purpose  ?  Yet 
Attorney  General  Bates,  in  his  argument  in  favor  of  the  claim  of  negro 
soldiers  to  pay  and  rations  equal  to  white  soldiers,  has  expressed  the  opinion 
that  this  law  was  not  intended  to  authorize  the  employment  of  persons  of 
African  descent  as  soldiers !  It  is  doubted  whether  there  was  a  single  mem 
ber  of  the  House  or  of  the  Senate  who  did  not  know  the  contrary.  The 
debates  in  Congress  during  the  session  of  1861-2,  which  terminated  on  the 
17th  of  July,  1862,  prove  beyond  question,— 

1.  That  it  was  fully  understood  by  members  of  both  Houses  that  colored 
persons  and  slaves  then  constituted  by  law  no  part  of  the  military  forces 
of  the  United  States. 

2.  That  no  provision  of  law  then  existed  which  would  authorize  the  arm 
ing  of  colored  men  or  slaves  as  part  of  the  volunteer  force  of  the  United 
States. 

3.  That  from  May  to  July,   1862,  several  attempts  were  made,   which 
failed,  to  introduce  colored  men  into  the  military  service  on  an  equality 
with  white  soldiers. 

4.  That  in  passing  the  act  of  1862  (Chap.  195),  the  confiscation  act,  it 
was  not  the  intention  of  Congress  to  introduce  negroes  or  slaves  into  the 
volunteer  forces,  or  the  regular  army  of  the  United  States,  but  to  give  them 
employment    in  camps,  forts,  &c.,  in  hot  climates,  where  such  labor   was 
too  oppressive  for  northern  troops. 

5.  That  the  act  of  July  17,  1862  (Chap.  201)  was  expressly  and  avowedly- 
intended  to  empower  the  President  to  make  colored  troops,  whether  slave 
or  free,  a  part  of  the  volunteer  forces  of  the  United  States,  to  be  organized, 
armed,  and  equipped  accordingly,  and  that  the  payment  provided  in  the  act, 
and  the  freedom  secured  to  those  who  were  thus  enrolled,  were  intended  to 
cover  not  ordinary  labor  only,  but  the  military  services  to  be  performed  by 
them  as  soldiers  and  a.s  fighting  men  in  thejield. 

6.  That  whenever  colored  volunteers  entered  the  military  service  after 
the  passage  of  the  act  (Chap.  201),  it  was  the  meaning  and  intent  of  the 
law  that  they  should  be  organized  and  paid  under  that  act. 


508  NOTES    TO    THE    FORTY-THIRD    EDITION. 

7.  That  it  was  not  the  intention  of  the  legislature  to  place  negroes  in  the 
military  service  of  the  United  States  upon  an  equality  of  pay  with  white 
volunteers  at  the  time  when  these  acts  were  passed  (1862). 

The  construction  put  upon  this  act  by  the  Senate  is  shown  by  a  subse 
quent  debate.  "  The  employment  of  negroes  as  soldiers  was  subjected  to  a 
vigorous  discussion,  started  on  the  27th  of  January,  1863,  by  an  amendment 
offered  to  a  pending  bill  by  Mr.  Stevens,  directing  the  President  to  raise,  arm, 
and  equip  as  many  volunteers  of  African  descent  as  he  might  deem  useful,"  &c. 
The  border  States  opposed  it.  Crittenden  objected.  Sedgwick,  of  New  York, 
advocated  it.  It  passed  the  House  by  83  ayes  to  54  noes.  On  reaching  the 
Senate,  it  was  referred  to  the  committee  on  military  affairs,  which,  on  the  12th 
of  February,  reported  against  it,  on  the  ground  that  the  authority  which  it 
was  intended  to  confer  upon  the  President  was  already  sufficiently  granted 
in  the  act  of  the  previous  session  (approved  July  17,  1862),  which  autho 
rized  the  President  to  employ  in  "  any  military  or  naval  service  for  which 
they  might  be  found  competent,  persons  of  African  descent."  This  report 
shows  conclusively  that  the  Senate  construed  the  militia  act  of  July  17,  1862 
(Chap.  201),  as  fully  authorizing  the  President  to  raise,  arm,  and  equip  as 
many  volunteers  of  African  descent  as  he  might  deem  useful ;  but  no  sen 
ator  claimed  that  the  confiscation  act  of  July  17,  1862  (Chap.  195),  con 
tained  such  an  authority. 

THE  ENROLMENT  ACT  OF  1863. 

The  next  act  under  which  it  has  been  supposed  that  colored  men  and 
slaves  may  have  been  received  into  the  military  service,  is  the  act  approved 
March  3,  1863,  called  the  Enrolment  Act,  which  provided  "  that  all  able- 
bodied  male  citizens  of  the  United  States  [and  certain  aliens]  should  con 
stitute  the  national  forces,  and  be  liable  to  perform  military  duty  when 
called  out  by  the  President  for  that  purpose."  The  question  whether  colored 
men  and  slaves  were  included  in  this  act,  depends  upon  the  answer  to  the 
question,  whether  they  were  at  that  date  deemed  in  law  to  be  citizens  of 
the  United  States.  The  previous  act  of  1862  included  all  citizens  and  per 
sons  of  African  descent,  but  does  not  say  whether  citizens  referred  to 
were  required  to  be  citizens  of  the  United  States,  or  only  of  States.  For 
the  purpose  of  interpreting  the  legal  meaning  of  the  phrase  "  a  citizen  of 
the  United  States  "  as  used  in  the  law  of  1863,  it  is  necessary  to  refer  to 
the  decision  of  the  Supreme  Court  of  the  United  States,  in  force  and  still  un- 
reversed  at  the  time  of  its  passage,  in  the  case  of  Dred  Scott.  By  that 
decision,  however  jurists  may  now  differ  in  their  views  of  the  matters  dis 
cussed,  it  was  decided  that  Dred  Scott  was  not  deemed  in  law  to  be  a  citi 
zen  of  the  United  States,  because  he  was  a  person  of  African  descent ;  and 
if  the  construction  of  this  enrolment  act  were  to  have  been  submitted  to 


NOTES    TO    THE   FORTY-THIRD    EDITION.  509 

the  same  court,  unless  they  should  reverse  their  former  decision,  they  would 
at  that  time  have  pronounced  the  opinion  that  persons  of  African  descent, 
and  especially  slaves,  were  not  included  within  the  terms  of  the  act.*  If 
colored  men  were  intended  to  be  included  therein,  and  were  required  to  be 
enrolled  as  part  of  the  forces  of  the  United  States,  and  to  be  paid  like  other 
soldiers,  is  it  not  singular  that  Congress  should  have  passed  another  act, 
approved  on  the  same  day  (March  3,  1863),  "  for  promoting  the  efficiency 
of  the  corps  of  engineers  and  ordnance  department,"  in  which  a  provision 
was  made  that  the  cooks  should  be  detailed  from  the  privates,  and  the 
President  was  authorized  (Sect.  9)  "  to  cause  to  be  enlisted  for  each  cook, 
two  under  cooks,  of  African  descent,  who  should  receive,  as  their  full  com 
pensation,  ten  dollars  per  month  and  one  ration  per  day,  three  dollars  of 
which  monthly  pay  may  be  in  clothing  "  (being  the  same  compensation  as 
under  the  militia  act  of  July  17,  1862)  ?  If  these  colored  cooks  were  liable 
to  be  enrolled  under  the  act  of  March  3,  and  were  entitled  to  be  paid,  when 
enlisted,  the  same  as  white  soldiers  (who  also  were  detailed  as  cooks),  it 
would  seem  strange  and  inconsistent  to  have  persons  of  the  same  color  and 
grade,  and  performing  the  same  service,  in  different  corps  of  the  army,  so  un 
equally  treated  as  to  payment,  bounties,  pensions,  &c.  It  is  not  reasonable 
to  suppose  that  Congress  intended  that  colored  men  if  enrolled  in  the 
military  forces  should  be  paid  thirteen  dollars  per  month,  and  if  enlisted  in 
the  Engineer  Corps  should  be  paid  ten  dollars  per  month,  performing  the 
same  duty  in  both  cases.  It  is  questionable  whether  colored  men  or  slaves, 
as  they  were  held  by  the  Supreme  Court  not  to  be  citizens  of  the  United 
States,  were  included  within  the  strict  terms  of  this  statute. 

THE  AMENDED  ENROLMENT  ACT  OF  1864. 

The  act  of  February  24,  1864,  however,  defines  and  settles  the  status  of 
colored  men  and  slaves,  by  providing,  in  express  terms,  that 

"  All  able-bodied  male  colored  persons  between  twenty  and  forty-five, 
resident  in  the  United  States,  shall  be  enrolled  according  to  the  provisions 
of  this  act,  and  of  the  act  of  March  3,  1863,  and  form  part  of  the  national 
forces." 

If  they  had  formed  part  of  the  national  forces,  or  had  been  required,  by 
the  law  of  1863,  to  be  enrolled,  it  is  difficult  to  see  why  this  amendment 
or  additional  provision  was  necessary.  This  act  avoids  the  question  of 
citizenship  of  colored  men.  It  is  not  material  whether  persons  to  be 
enrolled  under  this  statute  are  citizens  of  either  of  the  States,  or  citizens 
of  the  United  States  (as  required  by  the  act  of  1863).  Whether  slave  or 
free,  whether  citizens  or  not,  if  residents  only,  they  were  required  to  be 
enrolled,  and  they  were  to  be  assigned,  not  as  State  troops,  but  were  to 
be  mustered  into  service  in  regiments  or  companies  as  United  States  colored 
troops. 

*  See  Opinion,  p.  371. 


510  NOTES    TO    THE    FORTY-THIRD    EDITION. 

This  statute  (Sect.  1)  permitted  the  President  to  enroll  (under  restric 
tions)  in  the  militia  of  the  States  all  able-bodied  male  citizens.  Beyond  this, 
he  was  permitted  by  express  provision  also  to  enroll  persons  of  African 
descent  for  military  service.  If  persons  of  African  descent  were  deemed  to 
be  a  part  of  the  militia  of  the  States,  why  was  it  necessary  to  add  a  separate 
clause  giving  express  power  also  to  enroll  them,  and  to  make  them  soldiers  ? 
As  the  law  of  1795  was  in  force  at  the  time  when  the  act  of  1862  was 
passed,  and  as  colored  men  and  slaves  were  no  part  of  the  militia  of  any 
State,  and  were,  therefore,  not  included  in  the  provisions  of  the  first  section, 
above  cited,  it  became  necessary  either  to  enact  the  twelfth  section,  giving 
express  power  to  the  President  to  employ  this  class  of  persons  as  soldiers, 
or  else  to  repeal  the  act  of  1795.  Congress  adopted  the  former  alternative, 
and  passed  a  statute  which  called  into  service  both  slaves  and  free  men  of 
African  descent.  The  question  may  also  be  asked,  with  equal  force,  if 
any  law  of  Congress  authorized  the  enlistment  of  slaves  or  of  colored 
persons,  prior  to  1862,  what  was  the  use  of  amending  the  law  of  1863, 
for  enrolling  the  forces  of  the  United  States  by  providing  in  the  act 
of  February,  1864,  "  that  all  able-bodied  male  colored  persons  be 
tween  the  ages  of  twenty  and  forty-five  years  shall  be  enrolled  accord 
ing  to  the  provisions  of  this  act,  and  of  the  act  to  which  this  is  an 
amendment,  and  form  part  of  the  national  forces  ?  What  was  the  use  of 
all  the  provisions  for  the  volunteering  and  draft  of  slaves  ?  If  colored  per 
sons  were  included  in  the  forces  of  the  United  States  under  previous  laws, 
why  was  the  distinction  between  them  and  ordinary  troops  constantly 
repeated  in  every  statute  ?  If  it  was  the  intention  of  Congress,  when  passing 
any  of  the  acts  authorizing  the  calling  out  of  volunteers  prior  to  1862,  to 
place  slaves  and  persons  of  African  descent,  in  the  military  service,  on  an 
equality  with  white  soldiers,  why  was  not  that  intention  plainly  expressed  in 
some  of  the  acts  they  passed,  and  why  did  not  Congress  repeal  those  previ 
ous  laws  and  army  regulations  which  prevented  such  intention  from  being 
carried  into  effect  ?  If  Congress  really  intended  to  give  colored  soldiers 
equal  pay  with  white  soldiers,  why  did  it  spend  so  many  days  in  discussion 
whether  to  give  them  pay  for  the  future  according  to  such  intention  ?  Why 
has  it  refused  to  pass  any  law  which  shall  put  at  rest  all  questions  on  this 
subject,  by  giving  the  colored  troops  back  pay  from  the  beginning  of  their 
service  ?  The  inference  from  these  considerations  is  irresistible,  that  Con 
gress  had  no  intention,  in  1862,  to  allow  negroes  and  slaves  as  volunteers 
in  our  army,  nor  to  place  them  at  that  time  on  an  equality  with  white  sol 
diers,  and  never  meant  to  express,  and  never  did  express,  such  intention 
until  1864.  The  plain  truth  is,  that  from  1792  there  has  been  a  distinction 
made  in  the  laws  between  white  and  colored  men,  the  latter  having  been 
excluded  most  of  the  time  by  regulations  having  the  force  of  law  from  the 
regular  army,  and  all  the  time  from  the  State  militia  when  organized  accord- 


NOTES    TO    THE    FORTY-THIRD    EDITION.  511 

ing  to  law.  The  act  of  July  17,  1862  (Chap.  201),  was  an  experiment  for  the 
purpose  of  enabling  the  President  to  test  the  capacity  of  negroes  to  become 
reliable  soldiers.  The  experiment  has  succeeded.  The  act  of  1864  has  made 
them  permanently  a  part  of  the  national  forces.  It  is  gratifying  that  Con 
gress  has  at  last  equalized  the  pay  of  all  soldiers  of  the  country. 


APPENDIX: 

CONTAINING 

CASES    DECIDED    BY   THE  U.   S.    COURTS 

ON  THE  SUBJECTS  TREATED  OF  IN  THE  FOREGOING  PAGES. 


FLEMING  vs.  PAGE,  9  Howard's  S.  C.  Rep.  614. 
Mr.  Chief-Justice  TAXEY  delivered  the  opinion  of  the  Court : 

The  question  certified  by  the  Circuit  Court  turns  upon  the  con 
struction  of  the  Act  of  Congress  of  July  30, 1846.  The  duties  lev 
ied  upon  the  cargo  of  the  schooner  Catharine  were  the  duties  im 
posed  by  this  law  upon  goods  imported  from  a  foreign  country. 
And  if  at  the  time  of  this  shipment  Tampico  was  not  a  foreign 
port,  within  the  meaning  of  the  Act  of  Congress,  then  the  duties 
were  illegally  charged,  and,  having  been  paid  under  protest,  the 
plaintiff's  would  be  entitled  to  recover  in  this  action  the  amount 
exacted  by  the  collector. 

Tampico  The  port  of  Tampico,  at  which  the  goods  were  shipped,  and  the 
was  subject  Mexican  State  of  Tamaulipas,  in  which  it  is  situated,  were  un 
ereignty  °V"  dcmbtedly,  at  the  time  of  the  shipment,  subject  to  the  sovereignty  and 
and°domin-  dominion  of  the  United  States.  The  Mexican  authorities  had  been 
uns  °f  the  Driven  out'  or  nad  submitted  to  our  army  and  navy,  and  the  coun 
try  was  in  the  exclusive  and  firm  possession  of  the  United  States, 
rumpico  and  governed  by  its  military  authorities,  acting  under  the  orders  oj 
™sg°ve™;  the  President.  But  it  does  not  follow  that  it  was  a  part  of  the 
military  au-  United  States,  or  that  it  ceased  to  be  a  foreign  country,  in  the 
thorities.  sense  in  which  these  words  are  used  in  the  Acts  of  Congress. 

The  country  in  question  had  been  conquered  in  war.  But  the 
genius  and  character  of  our  institutions  are  peaceful,  and  the  power 
to  declare  war  was  not  conferred  upon  Congress  for  the  purposes 
of  aggression  or  aggrandizement,  but  to  enable  the  general  gov- 

512 


APPENDIX.  513 

eminent  to  vindicate  by  arms,  if  it  should  become  necessary,  its 
own  rights  and  the  rights  of  its  citizens. 

A  war,  therefore,  declared  by  Congress,  can  never  be  presumed 
to  be  waged  for  the  purpose  of  conquest,  or  the  acquisition  of  ter 
ritory  :  nor  does  the  law  declaring  the  war  imply  an  authority  to 
the  President  to  enlarge  the  limits  of  the  United  States  by  sub 
jugating  the  enemy's  country.     The  United  States,  it  is  true,  may 
extend'its  boundaries  by  conquest  or  treaty,  and  may  demand  the 
cession  of  territory  as  the  condition  of  peace,  in  order  to  indem 
nify  its  citizens  for  the  injuries  they  have  suifered,  or  to  reimburse 
the  Government  for  the  expenses  of  the  war.     But  this  can  be 
done  only  by  the  treaty-making  power  or  the  legislative  author 
ity,  and  is  not  a  part  of  the  power  conferred  upon  the  President 
by  the  declaration  of  war.     His  duty  and  his  power  are  purely 
military.     As  commander-in-chief,  Tie  is  authorized  to  direct  the  move-  Powers    of 
ments  of  the  naval  and  military  forces  placed  bylaw  at  his  command,  U^aSon!" 
and  to  employ  them  in  the  manner  he  may  deem  most  effectual  to  har-  mander-i™" 
ass  and  conquer  and  subdue  the  enemy.     He  may  invade  the  hostile  Chief  to 
country,  and  subject  it  to  the  sovereignty  and  authority  of  the  United  |?m^  and6 
States.     But  his  conquests  do  not  enlarge  the  boundaries  of  this  employ  it, 
Union,  nor  extend  the  operation  of  our  institutions  and  laws  beyond  inv      E? 
the  limits  before  assigned  to  them  by  the  legislative  power.  subjugate, 

It  is  true  that,  when  Tampico  had  been  captured,  and  the  State  noot  to  ex- 
of  Tamaulipas  subjugated,  other  nations  were  bound  to  regard  the  ifmits    of' 
country,  while  our  possession  continued,  as  the  territory  of  the  Union. 
United  States,  and  to  respect  it  as  such.     For,  by  the  laws  and 
usages  of  nations,  conquest  is  a  valid  title,  while  the  victor  main-  Tampico 
tains  the  exclusive  possession  of  the  conquered  country.     The  cit-  our?>  ~  f}s 
izens  of  no  other  nation,  therefore,  had  a  right  to  enter  it  without  elg^n 
the   permission   of  the  American  authorities,  nor  to  hold  inter- tries- 
course  with  its  inhabitants,  nor  to  trade  with  them.     As  regarded 
all  other  nations,  it  was  a  part  of  the  United  States,  and  belonged 
to  them  as  exclusively  as  the  territory  included  in  our  established 
boundaries. 

But  yet  it  was  not  a  part  of  this  Union.  For  every  nation 
which  acquires  territory  by  treaty  or  conquest  holds  it  accordino- 
to  its  own  institutions  and  laws.  And  the  relation  in  which  the 
port  of  Tampico  stood  to  the  United  States  while  it  was  occupied 
by  their  arms,  did  not  depend  upon  the  laws  of  nations,  but  upon 
our  own  Constitution  and  Acts  of  Congress.  The  power  of  the 
President,  under  which  Tampico  and  the  State  of  Tamaulipas  were 
conquered  and  held  in  subjection,  was  simply  that  of  a  military 
commander  prosecuting  a  war  waged  against  a  public  enemy  by 
the  authority  of  his  government.  And  the  country  from  which 
these  goods  were  imported  was  invaded  and  subdued,  and  occu 
pied  as  the  territory  of  a  foreign  hostile  nation,  as  a  portion  of 
Mexico,  and  was  held  in  possession  in  order  to  distress  and  har 
ass  the  enemy.  While  it  was  occupied  by  our  troops,  they  were 
in  an  enemy's  country,  and  not  their  own  :  the  inhabitants  were 
still  foreigners  and  enemies,  and  owed  to  the  United  States  noth 
ing  more  than  the  submission  and  obedience,  sometimes  called 
temporary  allegiance,  which  is  due  from  a  conquered  enemy  when 
he  surrenders  to  a  force  which  he  is  unable  resist.  But  the 
boundaries  of  the  United  States,  as  they  existed  when  war  was 
declared  against  Mexico,  were  not  extended  by  the  conquest ; 
nor  could  they  be  regulated  by  the  varying  incidents  of  war,  and 
65 


514  APPENDIX. 


be  enlarged  or  diminished  as  the  armies  on  either  side  advanced 
or  retreated.  They  remained  unchanged.  And  every  place 
which  was  out  of  the  limits  of  the  United  States,  as  previously  es 
tablished  by  the  political  authorities  of  the  government,  was  still 
foreign,  nor  did  our  laws  extend  over  it.  Tampico  was  therefore 
a  foreign  port  when  this  shipment  was  made. 

Again,  there  was  no  Act  of  Congress  establishing  a  custom 
house  at  Tampico,  nor  authorizing  the  appointment  of  a  collector ; 
and,  consequently,  there  was  no  officer  of  the  United  States  author 
ized  by  law  to  grant  the  clearance  and  authenticate  the  coasting 
manifest  of  the  cargo,  in  the  manner  directed  by  law,  where  the 
voyage  is  from  one  port  of  the  United   States  to  another.     The 
Collection    person  wJio  acted  in  the  character  of  collector  in  this  instance,  acted 
mifitaryS£  as  suc^  unaer  ^ie  authority  of  the  military  commander,  and  in  obedi- 
thority.        ence  to  his  orders  ;  and  the  duties  he  exacted  and  the  regulations  he 
adopted  were  not  those  prescribed  by  law,  but  by  the  President  in  his 
character  of  commander-in-chief.    The  custom-house  was  established 
in  an  enemy's  country,  as  one  of  the  weapons  of  war.     It  was  es 
tablished,  not  for  the  purpose  of  giving  to  the  people  of  Tamaul- 
ipas  the  benefits  of  commerce  with  the  United  States,  or  with 
An   act    of  other  countries,  but  as  a  measure  of  hostility,  and  as  a  part  of  the 
hostility,      military  operations  in  Mexico  ;  it  was  a  mode  of  exacting  contri 
butions  from  the  enemy  to  support  our  army,  and  intended  also  to 
cripple  the  resources  of  Mexico,  and  make  it  feel  the  evils  and 
burdens  of  the  war.     The  duties  required  to  be  paid  were  regulat- 
Contribu-     ed  with  this  view,  and  were  nothing  more  than  contributions  lev- 
tions  _  may  je(j  UpOn  the  enemy,  which  the  usages  of  war  justify  when  an  army 
is  operating  in  the  enemy's  country.     The  permit  and  coasting  man 
ifest  granted  by  an  officer  thus  appointed,  and  thus  controlled  by 
military  authority,  could  not  be  recognized  in  any  port  of  the 
United  States  as  the  documents  required  by  the  Acts  of  Congress, 
when  the  vessel  is  engaged  in  the  coasting  trade,  nor  could  they 
exempt  the  cargo  from  the  payment  of  duties. 

This  construction  of  the  revenue  laws  has  been  uniformly  given  by 
the  Administrative  Department  of  the  government  in  all  cases  that 
have  come  before  it.  And  it  has,  indeed,  been  given  in  cases  where 
there  appears  to  have  been  stronger  ground  for  regarding  the  place 
of  shipment  as  a  domestic  port.  For  after  Florida  had  been  ceded 
to  the  United  States,  and  the  forces  of  the  United  States  had 
taken  possession  of  Pensacola,  it  was  decided  by  the  Treasury  De 
partment,  that  goods  imported  irom  Pensacola  before  an  Act  of 
Congress  was  passed  erecting  it  into  a  collection  district,  and 
authorizing  the  appointment  of  a  collector,  were  liable  to  duty. 
That  is,  that,  although  Florida  had  by  cession  actually  become  a 
part  of  the  United  States,  and  was  in  our  possession,  yet,  under 
our  revenue  laws,  its  ports  must  be  regarded  as  foreign  until  they 
were  established  as  domestic  by  an  Act  of  Congress,  and  it  appears 
that  this  decision  was  sanctioned  at  the  time  by  the  Attorney- 
General  of  the  United  States,  the  law  officer  of  the  Government. 
And,  although  not  so  directly  applicable  to  the  case  before  us,  yet 
the  decisions  of  the  Treasury  Department  in  relation  to  Amelia 
Island  and  certain  ports  in  Louisiana  after  that  province  had  been 
ceded  to  the  United  States,  were  both  made  upon  the  same 
grounds.  And  in  the  latter  case,  after  a  custom-house  had  been 
established  by  law  at  New  Orleans,  the  collector  at  that  place  was 
instructed  to  regard  as  foreign  ports  Baton  Rouge  and  other  set- 


APPENDIX.  515 


tlements  still  in  the  possession  of  Spain,  whether  on  the  Missis 
sippi,  Iberville,  or  the  sea-coast.  The  Department,  in  no  instance 
that  we  are  aware  of,  since  the  establishment  of  the  Government, 
has  e\er  recognized  a  place  in  a  newly-acquired  country  as  a 
domestic  port  from  which  the  coasting  trade  might  be  carried  on, 
unless  it  had  been  previously  made  so  by  Act  of  Congress. 

The  principle  thus  adopted  and  acted  upon  by  the  Executive 
Department  of  the  government  has  been  sanctioned  by  the  de 
cisions  in  this  Court  and  the  Circuit  Courts  whenever  the  question 
came  before  them.  We  do  not  propose  to  comment  upon  the  dif 
ferent  cases  cited  in  the  argument.  It  is  sufficient  to  say  that 
there  is  no  discrepancy  between  them.  And  all  of  them,  so  far  as 
they  apply,  maintain  that  under  our  revenue  laws  every  port  is 
regarded  as  a  foreign  one  unless  the  custom-house  from  which  the 
vessel  clears  is  within  a  collection  district  established  by  Act  of 
Congress,  and  the  officers  granting  the  clearance  exercise  their 
functions  under  the  authority  and  control  of  the  laws  of  the  United 
States. 

In  the  view  we  have  taken  of  the  question,  it  is  unnecessary  to 
notice  particularly  the  passages  from  eminent  writers  on  the  laws 
of  nations  which  were  brought  forward  in  the  argument.  They 
speak  altogether  of  the  rights  which  a  sovereign  acquires,  and  the 
powers  he  may  exercise  in  a  conquered  country,  and  they  do  not 
bear  upon  the  question  we  are  considering.  For  in  this  country 
the  sovereignty  of  the  United  States  resides  in  the  people  of  the 
several  States,  and  they  act  through  their  representatives,  accord 
ing  to  the  delegation  and  distribution  of  powers  contained  in  the 
Constitution.  And  the  constituted  authorities  to  whom  the  power 
of  making  war  and  concluding  peace  is  confided,  and  of  determin 
ing  whether  a  conquered  country  shall  be  permanently  retained 
or  not,  neither  claimed  nor  exercised  any  rights  or  powers  in  rela 
tion  to  the  territory  in  question,  but  the  rights  of  war.  After  it 
was  subdued,  it  was  uniformly  treated  as  an  enemy's  country,  and 
restored  to  the  possession  of  the  Mexican  authorities  when  peace 
was  concluded.  And  certainly  its  subjugation  did  not  compel  the 
United  States,  while  they  held  it,  to  regard  it  as  a  part  of  their 
dominions,  nor  to  give  to  it  any  form  of  civil  government,  nor  to 
extend  to  it  our  laws. 

Neither  is  it  necessary  to  examine  the  English  decisions  which 
have  been  referred  to  by  counsel.  It  is  true  that  most  of  the 
States  have  adopted  the  principles  of  English  jurisprudence  so  far 
as  it  concerns  private  and  individual  rights.  And  when  such 
rights  are  in  question,  we  habitually  refer  to  the  English  decisions, 
not  only  with  respect,  but  in  many  cases  as  authoritative.  But  in 
the  distribution  of  political  power  between  the  great  departments 
of  government,  there  is  such  a  wide  difference  between  the  power 
conferred  on  the  President  of  the  United  States  and  the  authority 
and  sovereignty  which  belong  to  the  English  crown,  that  it  would 
be  altogether  unsafe  to  reason  from  any  supposed  resemblance  be 
tween  them,  either  as  regards  conquest  in  war,  or  any  other  subject 
where  the  rights  and  powers  of  the  executive  arm  of  the  Govern 
ment  are  brought  into  question.  Our  own  Constitution  and  form 
of  government  must  be  our  only  guide.  And  we  are  entirely 
satisfied  that  under  the  Constitution  and  laws  of  the  United  States 
Tampico  was  a  foreign  port,  within  the  meaning  of  the  Act  of 
1846,  when  these  goods  were  shipped,  and  that  the  cargoes  were 


516  APPENDIX. 

liable  to  the  duty  charged  upon  them.     And  we  shall  certify  ac 
cordingly  to  the  Circuit  Court. 


CROSS  vs.  HARRISON,  16  Howard's  S.  C.  Rep.  189. 
"  Indeed,  from  the  letter  of  the  then  Secretary  of  State,  and 
from  that  of  the  Secretary  of  the  Treasury,  we  cannot  doubt  that ' 
the  action  of  the  Military  Governor  of  California  ivas  recognized  as 
Constitu-     allowable  and  lawful  by  Mr.  Polk  and  his  cabinet.     We  think  it 
ized  acts°of  was  a  rightful  and  correct  recognition  under  all  the  circumstances, 
military       and  when  we  say  rightful,  we  mean  that  it  was  constitutional,  al- 
mcoTlectfng  though  Congress  had  not  passed  an  act  to  extend  the  collection  of 
revenue.       tonnage  and  import  duties  to  the  ports  of  California. 

California,  or  the  port  of  San  Francisco,  had  been  captured  by 
the  arms  of  the  United  States  as  early  as  1846.     Shortly  after 
ward,  the  United  States  had  military  possession  of  all  of  Upper 
Belligerent  California.     Early  in   1847,  the  President,  as  constitutional  Com- 
President  mander-in-Chief  of  the  army  and^  navy,  authorized  the  military  and 
tcThlstitute  naval  commander  of  our  forces  in  California  to  exercise  the  belliger- 
military       ent  rights  of  a  conqueror,  and  to  form  a  civil  government  for  the  con- 
government  quered  country,  and  to  impose  duties  on  imports  and  tonnage  as 
over     Call-  military  contributions  for  the  support  of  the  government  and  of  the 
forma.          army  which  had  the  conquest  in  possession.     We  will  add,  by  way 
of  note,  to  this  opinion,  references  to  all  of  the  correspondence  of 
the  government  upon  this  subject ;  now  only  referring  to  the  letter 
of  the  Secretary  of  War  to  General  Kearney,  of  the  10th  of  May, 
1847,  which  was  accompanied  with  a  tariff*  of  duties  on  imports 
and  tonnage,  which  had  been  prepared  by  the  Secretary  of  the  > 
Treasury,  with  forms  of  entry  and  permits  for  landing  goods,  all 
of  which  was  reported  by  the  Secretary  to  the  President  on  the 
30th  of  March,  1847.    Senate  Doc.  No.  1, 1st  Sess.,  30th  Congress, 
No  doubt  of  1847,  pp.  567,  583.     No  one  can  doubt  that  these  orders  ofthePresi- 
authority.    dent,  and  the  action  of  our  army  and  navy  commander  in  California 
in  conformity  with  them,  were  according  to  the  law  of  arms  and  the 
right  of  conquest,  or  that  they  were  operative  until  the  ratification  and 

exchange  of  a  treaty  of  peace 

•'  The  plaintiffs,  therefore,  can  have  no  right  to  the  return  of 
any  moneys  paid  by  them  as  duties  on  foreign  merchandise  in  San 
Francisco  up  to  that  date.  Until  that  time  California  had  not 
been  ceded  in  fact  to  the  United  States,  but  it  was  a  conquered 
territory  within  which  the  United  States  were  exercising  belliger 
ent  rights,  and  whatever  sums  were  received  for  duties  upon 
foreign  merchandises,  they  were  paid  under  them." 

After  treaty     But  after  the  ratification  of  the  treaty,  California  became  a  part  of 
California    tfre  United  States,  or  a  ceded,  conquered  territory.     Our  inquiry  here 
oftJ^lf.^S.,  is  to  be  whether  or  not  the  cession  gave  any  right  to  the  plaintiffs 
a  ceded  con-  to  have  the  duties  restored  to  them  which  they  may  have  paid  be- 
ritoi'ed  tei"  tween  the  ratifications  and  exchange  of  the  treaty  and  the  notifi 
cation  of  that  fact  by  our  Government  to  the  Military  Governor  of 
California.     It  was  not  received  by  him  until  two  months  after  the 
ratification,  and  not  then  with  any  instructions  or  even  remote 
intimation  from  the  President  that  the  civil  and  military  government, 
Civil  and     which  had  been  instituted  during  the  war,  was  discontinued.     Up  to 
government  *^a*  time?  whether  such  an  intimation  had  or  had  not  been  given, 
during    the  duties  had  been  collected  under  the  war  tariff,  strictly  in  confbr- 
in       m^^  w^  *^e  ^nstructi°ns  which  had  been  received  from  Wash- 
inton 


APPENDIX.  517 

The  ratification  of  the  treaty  of  peace  was  proclaimed  in  Cali 
fornia  by  Colonel  Mason,  on  the  7th  of  August,  1848.  Up  to  this 
time,  it  must  be  remembered  that  Captain  Folsom,  of  the  Quarter 
master's  Department  of  the  Army,  had  been  the  collector  of  duties 
under  the  war  tariff.  On  the  9th  of  August  he  was  informed  by 
Lieut.  Halleck,  of  the  Engineer  Corps,  who  was  the  Secretary  of 
State  of  the  Civil  Government  of  California,  that  he  would  be  re 
lieved  as  soon  as  a  suitable  citizen  could  be  found  for  his  successor. 
He  was  also  told  that  "  the  tariff  of  duties  for  the  collection  of 
military  contributions  was  immediately  to  cease,  and  that  the 
revenue  laws  and  tariff  of  the  United  States  will  be  substituted  in 
its  place."  The  view  taken  by  Governor  Mason  of  his  position  has 
been  given  in  our  statement.  The  result  was  to  continue  the  exist 
ing  government,  as  he  had  not  received  from  Washington  definite 
instructions  in  reference  to  the  existing  state  of  things  in  California. 

His  position  was  unlike  anything  that  had  preceded  it  in  the 
history  of  our  country.     The  view  taken  of  it  by  himself  has  been 
given  in  the  statement  in  the  beginning  of  this  opinion.     It  was 
not  without  its  difficulties   both  as  regards  the  principle  upon 
which  he  should  act,  and  the  actual  state  of  affairs  in  California. 
He  knew  that  the  Mexican  inhabitants  of  it  had  been  remitted  by 
the  treaty  of  peace  to  those  municipal  laws  and  usages  which  pre 
vailed  among  them  before  the  territory  had  been  ceded  to  the 
United  States,  but  that  a  state  of  things  and  population  had  grown 
up  during  the  war,  and  after  the  treaty  of  peace,  which  made 
some  other  authority  necessary  to  maintain  the  rights  of  the  ceded 
inhabitants  and  of  immigrants,  from  misrule  and  violence.     He 
may  not  have  comprehended  fully  the  principle  applicable  to  what 
he  might  rightly  do  in  such  a  case,  but  he  felt  rightly,  and  acted 
accordingly.     He  determined,  in  the  absence  of  all  instruction,  to 
maintain  the  existing  government.     The  territory  had  been  ceded 
as  a  conquest,  and  was  to  be  preserved  and  governed  as  such  until 
the  sovereignty  to  which  it  had  passed  had  legislated  for  it.     That 
sovereignty  was  the  United  States,  under  the  Constitution,  by 
which  power  had  been  given  to  Congress  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States,  with  the  power  also  to 
admit  new  States  into  this  Union  with  only  such  limitations  as  are 
expressed  in  the  section  in  which  this  power  is  given.     The  gov-  Origin  of 
ernment  of  which  Colonel  Mason  was  the  executive,  had  its  origin  this  govern- 
in  the  lawful  exercise  of  a  belligerent  right  over  a  conquered  territory.  m( 
It  had  been  instituted  during  the  war  by  the  command  of  the  Presi-  How  insti- 
dent  of  the  United  States.     It  was  the  government  when  the  territory tuted< 
was  ceded  as  a  conquest,  and  it  did  not  cease  as  a  matter  of  course,  it  did   not 
or  as  a  necessary  consequence  of  the  restoration  of  peace.      7%ecease  bvQ 
President  might  have  dissolved  it  by  withdrawing  the  army  and  navy  ofSpea^e  ^ 
officers  who  administered  it,  but  he  did  not  do  so.     Congress  could  Dissolved 
have  put  an  end  to  it,  but  that  was  not  done.     The  right  inference  by  power  of 
from  the  inaction  of  both  is,  that  it  was  meant  to  be  continued  un-  JJ^Jy  ecou. 
til  it  had  been  legislatively  changed.     No  presumption  of  a  contrary  gress. 
intention  can  be  made.     Whatever  may  have  been  the  causes  of 
the  delay,  it  must  be  presumed  that  the  delay  was  consistent  with 
the  true  policy  of  the  government.     And  the  more  so  as  it  was 
continued  until  the  people  of  the  territory  met  in  convention  to 
form  a  state  government  which  was  subsequently  recognized  by 
Congress  under  its  power  to  admit  new  States  into  the  Union. 


518  APPENDIX. 

Civil  gov-       In  confirmation  of  what  has  been  said  in  respect  to  the  power 
tablished  as  °^  Congress  over  this  territory,  and  the  continuance  of  the  civil  gov- 
a  war  right,  eminent  established  as  a  war  right,  until  Congress  acted  upon  the 
subject,  we  refer  to  two  of  the  decisions  of  this  Court,  in  one  of 
which  it  is  said,  in  respect  to  the  treaty  by  which  Florida  was  ceded 
to  the  United  States,  "  This  treaty  is  the  law  of  the  land,  and 
Rights  of    admits  the  inhabitants  of  Florida  to  the  enjoyment  of  the  privileges, 
citizenship  rights,  ana  immunities  of  the  citizens  of  the  United  States.     It  is  un- 
sariiy  ac-    necessary  to  inquire  whether  this  is  not  their  condition  independ- 
companied  ently  of  stipulations.     They  do  not,  however,  participate  in  political 
power.        power, —  they  do  not  share  in  the  government  until  Florida  shall  he- 
come  a  State.     In  the  mean  time  Florida  continues  to  be  a  territory 
of  the  United  States,  guarded  by  virtue  of  that  clause  of  the  Con 
stitution  which  empowers  Congress  to  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belonging 
Power  of    to  the  United  States.     Perhaps  the  power  of  governing  a  territory 
ferritoj"  — U  belonging  to  the  United  States,  which  has  not  by  becoming  a  State 
how  it  re-  acquired  the  means  of  self-government,  may  result  necessarily  from 
suits.  the  facts  that  it  is  not  within  the  jurisdiction  of  any  particular  State, 

and  is  within  the  power  and  jurisdiction  of  the  United  States.  The 
right  to  govern  may  be  the  natural  consequences  of  the  right 
to  acquire  territory."  American  Insurance  Company  vs.  Can 
ter,  1  Peters,  542,  543.  (See  also  U.  S.  vs.  Gratiot,  14  Peters, 

526.) 

"When  mili-      "  Our  conclusion,  from  what  has  been  said,  is,  that  the  civil  govern- 
ernmfntTin  ment  °^  California,  organized  as  it  was  from  a  right  of  conquest,  did 
California     n°t  cease  or  become  defunct  in  consequence  of  the  signature  of  the 
ceased.         treaty,  or  from  its  ratification.     We  think  it  was  continued  over  a 
ceded  conquest,  without  any  violation  of  the  Constitution  or  laws  of 
the  United  States,  and  that,  until  Congress  legislated  for  it,  the  du 
ties  upon  foreign  goods  imported  into  San  Francisco  were  legally 
demanded  and  lawfully  received  by  Mr.  Harrison,  the  collector  of 
the  port,  who  received  his  appointment,  according  to  instructions 

from  Washington,  from  Governor  Mason." 

What  laws      "  The  second  objection  states  a  proposition  larger  than  the  case 
are  in  force  admits,  and  more  so  than  the  principle  is,  which  secures  to  the  in- 
quest.C°r      habitants  of  a  ceded  conquest  the  enjoyment  of  what  had  been 
their  laws  before,  until  they  have  been  changed  by  the  new  sov 
ereignty  to  which  it  has  been  transferred.     In  this  case,  foreign 
Right  of  the  trade  had  been  changed  in  virtue  of  a  belligerent  right,  before  the  ter- 
conqueror    ritory  was  ceded  as  a  conquest,  and  after  that  had  been  done  by  a 
tradef1 '  *  treaty  of  peace,  the  inhabitants  were  not  remitted  to  those  regula 
tions  of  trade  under  which  it  was  carried  on  whilst  they  were  un 
der  Mexican  rule  ;  because  they  had  passed  from  that  sovereignty 
to  another,  whose  privilege  it  was  to  permit  the  existing  regulations 
of  trade  to  continue,  and  by  which  only  they  could  be  changed. 
We  have  said,  in  a  previous  part  of  this  opinion,  that  the  sover 
eignty  of  a  nation  regulated  trade  with  foreign  nations,  and  that 
none  could  be  carried  on  except  as  the  sovereignty  permits  it  to  be 
done.     In  our  situation,  that  sovereignty  is  the  constitutional  dele 
gation  to   Congress  of  the  power  '  to  regulate  commerce  with  for 
eign  nations  and  among  the  several  States,  and  with  the  Indian 

tribes.'" 

"  But  we  do  not  hesitate  to  say,  if  the  reasons  given  for  our  con 
clusions  in  this  case  were  not  sound,  that  other  considerations  would 
bring  us  to  the  same  results.  The  plaintiffs  carried  these  goods 


APPENDIX.  519 


voluntarily  into  California,  knowing  the  state  of  things  there.  They 
knew  that  there  was  an  existing  civil  government,  instituted  by  the 
authority  of  the  President  as  commander-in-chief  of  the  army  and 
naval  forces  of  the  United  States,  by  the  right  of  conquest ;  that 
it  had  not  ceased  when  these  first  importations  were  made  ;  that  it 
was  afterwards  continued,  and  rightfully,  as  we  have  said,  until 
California  became  a  State,  that  they  were  not  coerced  to  land  their 
goods,  however  they  may  have  been  to  pay  duties  upon  them ;  that 
such  duties  were  demanded  by  those  who  claimed  the  right  to  rep 
resent  the  United  States  (who  did  so,  in  fact,  with  most  com 
mendable  integrity  and  intelligence)  ;  that  the  money  collected  has 
been  faithfully  accounted  for,  and  the  unspent  residue  of  it  received 
into  the  treasury  of  the  United  States;  and  that  the  Congress  has 
by  two  acts  adopted  and  ratified  all  the  acts  of  the  government 
established  in  California  upon  the  conquest  of  that  territory,  rela 
tive  to  the  collection  of  imposts  and  tonnage,  from  the  commence 
ment  of  the  late  war  with  Mexico  to  the  12th  November,  1849, 
expressly  including  in  such  adoption  the  moneys  raised  and  expend 
ed  during  that  period  for  the  support  of  the  actual  government  of 
California  after  the  ratification  of  the  treaty  of  peace  with  Mexico. 
This  adoption  sanctions  what  the  defendant  did.  It  does  more  ;  it 
affirms  that  he  had  legal  authority  for  his  acts.  It  coincides  with 
the  views  which  we  have  expressed  in  respect  to  the  legal  liability 
of  the  plaintiff  for  the  duties  paid  by  them,  and  the  authority  of 
the  defendant  to  receive  them  as  Collector  of  the  port  of  San  Fran 
cisco." 


JECKER  vs.  MONTGOMERY,  18  Howard's  S.  C.  Rep.  112. 

"  As  a  principle  applicable  to  the  first  of  these  inquiries,  it  may  A]j  citizens 
be  averred  as  a  part  of  the  law  of  nations,  —  forming  a  part,  too,  of  States  at 
of  the  municipal  jurisprudence  of  every  country,  — "  that  in  a  J™JS  o 
state  of  war  between  two  nations,  declared  by  the  authority  in  other, 
whom  the  municipal  constitution  vests  the  power  of  making  war, 
the  two  nations  and  all  their  citizens  or  subjects  are  enemies  to  each 
other."  The  consequence  of  this  state  of  hostility  is,  that  all  inter 
course  and  communication  between  them  is  unlawful.  Vide  Wheaton 
on  Maritime  Captures,  ch.  7,  p.  209,  quoting  from  Bynkershoeck 
this  passage :  '  Ex  natura  belli  commercia  inter  hostes  cessare,  non 
est  dubitandum.  Quamvis  nulla  specialis  sit  commerciorum  pro- 
hibitio,  ipso  tamen  jure  belli,  commercia  inter  hostes  esse  vetita, 
ipsae  indictiones  belloruin  satis  declarant.' 

"  The  same  rule  has  been  adopted,  with  equal  strictness,  by  this 
court.  In  the  case  of  The  Rapid,  reported  in  8  Cranch,  155,  the 
claimant,  a  citizen  of  the  United  States,  had  purchased  goods  in 
the  enemy's  country,  a  long  time  before  the  declaration  of  war,  and 
had  deposited  them  on  an  island,  near  the  boundary  line  between  the 
two  countries.  Upon  the  breaking  out  of  hostilities,  his  agent  had 
hired  the  vessel  to  proceed  to  the  place  of  deposit,  and  bring  away 
these  goods.  Upon  her  return,  the  vessel  was  captured,  and  with 
the  cargo  was  condemned  as  prize  of  war  for  trading  with  the 
enemy  .^  In  applying  the  law  to  this  state  of  facts,  this  "Court  said, 
and  said  unanimously,  "  That  the  universal  sense  of  nations  has 
acknowledged  the  demoralizing  effects  that  would  result  from  the  ad- 


520 


APPENDIX. 


All  are  ene 
mies. 


Non-inter 
course. 


Enemy 
property. 


Non    inter 
course. 


Trade     un 
lawful. 


mission  of  individual  intercourse.  The  whole  nation  are  embarked 
in  one  common  bottom,  and  must  be  reconciled  to  submit  to  one  com 
mon  fate.  Every  individual  of  the  one  nation  must  acknowledge 
every  individual  of  the  other  nation  as  his  own  enemy,  because  the 
enemy  of  his  country.  But,  after  deciding  what  is  the  duty  of  the 
citizen,' the  question  occurs,  What  is  the  consequence  of  a  breach 
of  that  duty  V  The  law  of  prize  is  a  part  of  the  law  of  nations. 
In  it,  a  hostile  character  is  attached  to  trade,  independently  of  the 
character  of  the  trader,  who  pursues  or  directs  it.  Condemnation 
to  the  use  of  the  captor,  is  equally  the  fate  of  the  property  of  the  bel 
ligerent,  and  of  the  property  engaged  in  anti-neutral  trade.  But  a 
citizen  or  an  ally  may  be  engaged  in  a  hostile  trade,  and  thereby 
involve  his  property  in  the  fate  of  those  in  whose  cause  he  embarks." 
Again  the  Court  say,  "  If,  by  trading,  in  prize  law  was  meant  that 
signification  of  the  term  which  consists  in  negotiation  or  contract, 
this  case  ivould  not  come  under  the  penalties  of  the  rule.  But  the 
object  and  spirit  of  the  rule  is  to  cut  off  all  communication  or  actual 
locomotive  intercourse  between  individuals  of  the  belligerent  nations. 
Negotiation  or  contract  has,  therefore,  no  necessary  connection 
with  the  offence.  Intercourse  inconsistent  with  actual  hostility,  is  the 
offence  against  wldcli  the  operation  of  the  rule  is  directed."  .  . 

"  The  same  course  of  decision  which  has  established  that  property 
of  a  subject  or  citizen  taken  trading  with  the  enemy  is  forfeited,  has 
decided  also  that  it  is  forfeited  as  prize.  The  ground  of  the  for 
feiture  is,  that  it  is  taken  adhering  to  the  enemy,  and  therefore  the 
proprietor  is  pro  hac  vice  to  be  considered  an  enemy.  Vide  also 
Wheaton  on  Captures,  p.  219  ;  and  1  C.  Robinson,  219,  the  case 
of  The  Nelly." 

Attempts  have  been  made  to  evade  the  rule  of  public  law,  by 
the  interposition  of  a  neutral  port  between  the  shipment  from  the 
belligerent  port  and  their  ultimate  destination  in  the  enemy's  coun 
try  ;  but  in  all  such  cases  the  goods  have  been  condemned  as  hav 
ing  been  taken  in  a  course  of  commerce  rendering  them  liable  to 
confiscation  ;  and  it  has  been  ruled  that,  without  license  from  gov 
ernment,  no  communication,  direct  or  indirect,  can  be  carried  on  with 
the  enemy ;  that  the  interposition  of  a  prior  port  makes  no  differ 
ence  ;  that  all  the  trade  with  the  enemy  is  illegal,  and  the  circum 
stance  that  the  goods  are  to  go  first  to  a  neutral  port  will  not  make 
it  lawful.  3  C.  Robinson,  22,  The  Indian  Chief;  and  4  C.  Rob 
inson,  79,  The  Jonge  Pieter 


DYNES  vs.  HOOVER,  20  Howard's  S.  C.  Rep.  78. 

The  demurrer  admits  that  the  court  martial  was  lawfully  organ 
ized  ;  that  the  crime  charged  was  one  forbidden  by  law ;  that  the 
court  had  jurisdiction  of  the  charge  as  it  was  made ;  that  a  trial  took 
place  before  the  court  upon  the  charge,  and  the  defendant's  plea  of 
not  guilty  ;  and  that,  upon  the  evidence  in  the  case,  the  court  found 
Dynes  guilty  of  an  attempt  to  desert,  and  sentenced  him  to  be 
punished,  as  has  already  been  stated ;  that  the  sentence  of  the 
court  was  approved  by  the  Secretary ;  and  that,  by  his  direction, 
Dynes  was  brought  to  Washington ;  and  that  the  defendant  was 
marshal  for  the  District  of  Columbia ;  and  that  in  receiving  Dynes, 
and  committing  him  to  the  keeper  of  the  penitentiary,  he  obeyed 
the  orders  of  the  President  of  the  United  States,  in  execution  of  the 


APPENDIX.  521 

sentence.      Among  the  powers  conferred  upon  Congress,  by  the 
8th  section  of  the  "ist  Article  of  the  Constitution,  are  the  follow 
ing  :  "  to  provide  and  maintain  a  navy ; "  "  to  make  rules  for  the 
government  of  the  land  and  naval  forces."     And  the  8th  Amend- Construe- 
ment,  which  requires  a  presentment    of  a  grand  jury  in  cases  ^an^ndm  §tit 
capital  or  otherwise  infamous  crime,  expressly  excepts  from  its  opera-  Grand  jury 
tiom  "  cases  arising  in  the  land  or  naval  forces"     And  by  the  2d  not.  requir- 
section  of  the  2d*  Article  of  the  Constitution,  it  is  declared  that  |{J/n  caseS| 
"  The  President   shall    be   commander-in-chief  of  the   army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  States, 
when  called  into  the  actual  service  of  the  United  States." 

These  provisions  show  that  Congress  has  the  power  to  provide  for  Power  of 
the  trial  and  punishment  of  military  and  naval  offences,  in  the  manner  Congress  to 
then  and  now  practiced  by  civilized  nations  ;  and  that  the  power  to  do  for 'puntsh- 
so,  is  given  without  any  connection  between  it  and   the  3d  Article  o/"mentofmil- 
the  Constitution,  defining  the  judicial  power  of  the    United  States  ;  Jj^  aj£ 
indeed,  that,  the  two  powers  are  entirely  independent  of  each  other. .  .  fences. 

"  The  objection  is  ingeniously  worded,  was  very  ably  argued,  and  Has  no  con- 
we  may  add,  with  a  clear  view  and  knowledge  of  what  the  law  is  ™^°Je  -u 
upon  such  a  subject,  and  how  the  plaintiff's  case  may  be  brought  JYcial  pow- 
under  it,  to  make  the  defendant  responsible  on  this  action  for  false  er. 
imprisonment.     But  it  substitutes  an  imputed  error  in  the  finding 
of  the   Court,  for  the  original  subject  matter   of  its  jurisdiction, 
seeking  to  make  the  marshal  answerable  for  his  mere  ministerial  exe-  Marshal  not 
cution  of  a  sentence,  which  the  Court  passed,  the    Secretary  of  the  liable  for 
Navy  approved,  and  which  the  President  of  the  United  States,  as  ™ct  toSe. 
constitutional  Commander-iii-Chief  of  the  army  and  navy  of  the  cuting  sen- 
United  States,  directed  the  marshal  to  execute,  by  receiving  the  tence>  etc- 
prisoner  and  convict,  Dynes,  from  the  naval  officer  then  having 
him  in  custody,  to  transfer  him  to  the  penitentiary,  in  accordance 
with  the  sentence  which  the  Court  had  passed  upon  him 

"  But  the  case  in  hand  is  not  one  of  a  court  without  jurisdiction 
over  the  subject  matter,  or  that  of  one  which  has  neglected  the 
forms  and  rules  of  procedure  enjoined  for  the  exercise  of  juris 
diction.     It  was  regularly  convened  ;  its  forms  of  procedure  were 
strictly  observed  as  they  are  directed  to  be  by  the  statute ;  and  if 
its  sentence  be  a  deviation  from  it,  which  we  do  not  admit,  it  is 
not   absolutely  void.     Whatever  the   sentence  is,  or  may  have 
been,  as  it  was  not  a  trial  by  court  martial  taking  place  out  of  the 
United  States,  it  could  not  have  been  carried  into  execution  but 
by  the  confirmation  of  the  President,  had  it  extended  to  loss  of 
life,  or  in  cases  not  extending  to  loss  of  life,  as  this  did  not,  but  by 
the  confirmation  of  the   Secretary  of  the  Navy,  who  ordered  the 
Court.     And  if  a  sentence  be  so  confirmed,  it  becomes  final,  and  Sentence  oi 
must  be  executed,  unless  the  President  pardon  the  offenders.    It  is  ^fffijjS*" 
the  nature  of  an  appeal  to  the  officer  ordering  the  court,  who  is  made 
by  the  law  the  arbiter  of  the  legality  and  propriety  of  the  court's 
sentence.     When  confirmed  it  is  altogether  beyond  the  jurisdiction  civil  courts 
of  any  civil  tribunal  whatever,  unless  it  shall  be  in  a  case  in  which  n.av?  ^o  Ju~ 
the  court  had  not  jurisdiction  over  the  subject  matter  or  charge,  or  "ver  thesen- 
one  in  which,  having  jurisdiction  over  the  subject  matter,  it  has  fence, 
failed  to  observe  the  rules  prescribed  by  the  statute  for  its  exercise. 
In  such  cases,  as  has  just  been  said,  all  of  the  parties  to  such  ille-  Except, 
gal  trial  are  trespassers  upon  a  party  aggrieved  by  it,  and  he  may 
recover  damages  from  them  on  a  proper  suit  in  a  civil  court,  by 
the  verdict  of  a  jury." 

66 


522 


APPENDIX. 


hive  CnortS  "  ^^  ^ie  sentences  of  courts  martial  which  have  been  convened 
right  to°  in-  regularbs  and  have  proceeded  legally,  and  by  which  punishments 
terierc  with  are  directed,  not  forbidden  by  law,  or  which  are  according  to  the 
courts  <marJ  ^aws  anc*  customs  °f  the  sea'  cw%  courts  have  nothing  to  do,  nor 
tial.  are  they  in  any  way  alterable  by  them.  If  it  were  otherwise,  the 

civil  courts  would  virtually  administer  the  rules  and  articles  of 
war,  irrespective  of  those  to  whom  that  duty  and  obligation  has 
been  confided  by  the  laws  of  the  United  States,  from  whose  de 
cisions  no  appeal  or  jurisdiction  of  any  kind  has  been  given  to 
the  civil  magistrate  or  civil  courts.  But  we  repeat,  if  a  court 
Except.  martial  has  no  jurisdiction  over  the  subject  matter  of  the  charge  it 
has  been  convened  to  try,  or  shall  inflict  a  punishment  forbidden 
by  the  law,  though  its  sentence  shall  be  approved  by  the  officers 
having  a  revisory  power  of  it,  civil  courts  may,  on  an  action  by  a 
party  aggrieved  by  it,  inquire  into  the  want  of  the  court's  juris 
diction,  and  give  him  redress.  (Harm  an  vs.  Tappenden,  1  East 
555  ;  as  to  ministerial  officers,  Marshall's  Case,  10  Cr.  76  ;  Morrison 
vs.  Sloper,  Wells,  30;  Parton  vs.  Williams,  B.  and  A.  330  ;  and  as 
to  justices  of  the  peace,  by  Ld.  Tenterden,  in  Basten  vs.  Carew, 
3  13.  and  C.  653  ;  Mules  vs.  Calcott,  6  Bins.  85."  ..... 
Imprison-  «'  In  this  case  all  of  us  think  that  the  court  which  tried  Dynes  had 
penitenti-  jurisdiction  over  the  subject  matter  of  the  charge  against  him  ; 


ary  of 
Dynes. 


Authority 


that  the  sentence  of  the  court  against  him  was  not  forbidden  by 
law  ;  and  that  having  been  approved  by  the  Secretary  of  the  Navy 
as  a  fair  deduction  from  the  17th  Article  of  the  Act  of  April  23, 
1800,  and  that  Dynes  having  been  brought  to  Washington  as  a 
Prisoner  by  the  direction  of  the  Secretary,  that  the  President  of 
the  United  States,  as  constitutional  Commander-in-Chief  of  the 
army  and  navy,  and  in  virtue  of  his  constitutional  obligation  that 
he  shall  take  care  that  the  laws  be  faithfully  executed,  violated 
no  law  in  directing  the  Marshal  to  receive  the  prisoner  Dynes  from 
the  officer  commanding  the  United  States  steamer  Engineer,  for 
the  purpose  of  transferring  him  to  the  penitentiary  of  the  District 
of  Columbia,  and,  consequently,  that  the  Marshal  is  not  answer 
able  in  this  action  of  trespass  and  false  imprisonment." 


LEITENSDORFER  vs.  WEBB,  20  Howards    S,  C.  Rep.  176. 

Civil gov-  "Upon  the  acquisition,  in  the  year  1846,  by  the  arms  of  the 
ernmont  of  United  States,  of  the  Territory  of  New  Mexico,  the  civil  govern- 
overthro°wn  meni  °f  this  territory  having  been  overthrown,  the  officer,  General 
by  conquest  Kearney,  holding  possession  for  the  United  States,  in  virtue  of  the 
Provisional  Power  °^  conquest  and  occupancy,  and  in  obedience  to  the  duty  of 
government  maintaining  the  security  of  the  inhabitants  in  their  persons  and  prop- 
ordered  by  erty,  ordained,  under  the  sanction  and  authority  of  the  United  States, 
ney!'  ™'  d  provisional  or  temporary  government  for  the  acquired  country.  By 

this  substitution  of  a  new  supremacy,  although  the  former  political 
Duty.  relations  of  the  inhabitants  were  dissolved,  their  private  relations, 

How  far  their  rights  vested  under  the  government  of  their  former  allegiance, 
their  former  or  those  arising  from  contract  or  usage,  remained  in  full  force  and 
cllanged!ere  unchanged,  exccept  so  far  as  they  were  in  their  nature  and  character 

found  to  be  in  conflict  with  the  Constitution  and  laws  of  the  United 
What  law  States,  OR  WITH  ANY  REGULATIONS  WHICH  THE  CONQUERING 

is  to  be  ad-    AND   OCCUPYING   AUTHORITY     SHOULD     ORDAIN,      Amongst  the 

ministered  consequences  which  would  be  necessarily  incident  to  the  change  of 
bv  military  \  •>  •,  -,  ,-,  .  J  ,  7  ,  7 

power.         sovereignty,  would  be  the  appointment  or  control  oj   the  agents  by 


APPENDIX.  523 

whom  and  the  modes  in  which  the  government  of  the  occupant  should  Conquest 
be  administered,  —  this  result  being  indispensable,  in  order  to  secure  S^hanfe  ta 
those  objects  for  which  such  a  government  is  usually  established"        government 
This  is  the  principle  of  the  law  of  nations,  as  expounded  by  the  and  officers 
hihest  authorities.     In  the  case  of  The  Fama,  in  the  5th  of  Robin-  *  " 


inson's  Rep.  p.  106,  Sir  William  Scott  declares  it  to  be  "  the  settled  curevictory. 
principle  of  the  law  of  nations,  that  the  inhabitants  of  a  conquered 
territory  change  their  allegiance,  and  their  relation  to  their  former 
sovereign  is  dissolved  ;  but  their  relations  to  £ach  other,  and  their 
rights  of  property  not  taken  from  them  by  the  orders  of  the  conqueror, 
remain  undisturbed."  So,  too,  it  is  laid  down  by  Vattel,  book  3d, 
ch.  13,  sect.  200,  that  "  the  conqueror  lays  his  hands  on  the  posses 
sions  of  the  state,  whilst  private  persons  are  permitted  to  retain 
theirs  ;  they  suffer  but  indirectly  by  the  war,  and  to  them  the  result 
is  that  they  only  change  masters." 

In  the  case  of  the  United  States  vs.  Perchiman,  7  Peters,  pp.  86, 
87,  this  court  have  said,  u  It  may  be  not  unworthy  of  remark, 
that  it  is  very  unusual,  even  in  cases  of  conquest,  for  the  conqueror 
to  do  more  than  to  displace  the  sovereign,  and  assume  dominion 
over  t|ie  country.  The  modern  usage  of  nations,  which  has  become 
law,  would  be  violated,  and  that  sense  of.  justice  and  right  which 
is  acknowledged  and  felt  by  the  whole  civilized  world  be  outraged, 
if  private  property  should  be  generally  confiscated  and.  private  rights 
annulled.  The  people  change  their  allegiance  ;  their  /elation  to 
their  sovereign  is  dissolved  ;  but  their  relations  to  each  other,  and 
their  rights  of  property,  remain  undisturbed."  (Vide  also  the  case 
of  Mitchel  vs.  The  United  States,  9th  ib.  711,  and  Kent's  Com.  vol. 
l,p.  177.) 

Accordingly,  we  find  that  there  was  ordained  by  the  provisional  Judicial 
Government  a  judicial  system,  which  created  a  superior  or  appellate  ^ 
court,  constituted  of  three  judges,  and  circuit  courts,  in  which  the  laws 
were,  to  be  administered  by  the  judges  of  the  superior  or  appellate 
court,  in  the  circuits  to  which  they  should  be  respectively  assigned. 
By  the  same  authority,  the  jurisdiction  of  the  Circuit  Courts  to  be  Courts  es- 
held  in  the  several  counties  was  declared  to  embrace,  1st,  all  criminal 


cases  that  shall  not  be  otherwise  provided  for  by  law  ;  and,  2d,  exclu-  power 
sive  original  jurisdiction  in  all  civil  cases  which  shall  not  be  cognizable  Jurisdic- 
bcfore  the  prefects  and  alcaldes  (  Vide  Laws  of  New  Mexico,  Kear-     n>  etc* 
ney's  Code.  p.  48).     Of  the  validity  of  these  ordinances  of  the  pro 
visional  government  there  is  made  no  question  with  respect  to  the 
period  during  which  the  territory  was   held  by  the    United  States 
as  occupying  conqueror,  and  it  would  seem  to  admit  of  no  doubt 
that  during  the  period  of  their  valid  existence  and  operation,  these 
ordinances  must  have  displaced  and  superseded  every  previous  in-  Displaced 
st'dution  of  the  vanquished  or  deposed  political  power  which  was  i^.  all  old  laws 
compatible  with  them.     But  it  has  been  contended,  that  whatever  bie°etc.  U 
may  have  been  the  rights  of  the  occupying  conqueror  as  such,  these 
were  all  terminated  by  the  termination  of  the  belligerent  attitude  -when  ter 
of  the  parties,  and  that,  with  the  close  of  the  contest,  every  institu-  minated. 
tion  which  had  been  overthrown  or  suspended  would  be  revived 
and  reestablished.     The  fallacy  of  this  pretension  is  exposed  by  the 
fact,  that  the  territory  never  was  relinquished  by  the  conqueror, 
nor  restored  to  its  original  condition  or  allegiance,  but  was  retained 
by  the  occupant  until  possession  was  matured  into  absolute  per 
manent  dominion  and  sovereignty  ;  and  this,  too,  under  the  settled 
purpose  of  the  United  States,  never  to  relinquish  the  possession  ac- 


524 


APPENDIX. 


How  termi-  quired  by  arms.  We  conclude,  therefore,  that  the  ordinances  and 
nated.  institutions  of  the  provisional  government  would  be  revoked  or 
modified  by  the  United  States  alone,  either  by  direct  legislation  on 
the  part  of  Congress,  or  by  that  of  the  territorial  government  in  the 
exercise  of  powers  delegated  by  Congress.  That  no  power  what 
ever,  incompatible  with  the  Constitution  or  laws  of  the  United 
States,  or  with  the  authority  of  the  provisional  government,  was 
retained  by  the  Mexican  government,  or  was  revived  under  that 
government,  from  the-period  at  which  the  possession  passed  to  the 
authorities  of  the  United  States. 


UNITED    STATES    SUPREME    COURT. 
TERM,  1863,-4. 


DECEMBER 


Petitioner 
charged 

pressing" 
disloyal 


thy  for  reb 
els; 


Was  tried, 

andVsenten 
ced; 


Sentence 
commuted. 


THE    VALLANDIGHAM    CASE. 

Ex  parte,  in  the  matter  of  Clement  L.  Vallandiglmm,  Petitioner  ;  on 
petition  for  a  writ  of  certiorari  to  the  Judge  Advocate-  General  of 
the  Army  of  the  United  States. 

There  is  no  analogy  between  the  power  cf  the  United  States  Court  to  issue  writs 

of  certiorari,  and  the  prerogative  power  by  which  they  issue  in  England. 
United  States  Courts  derive  such  power  solely  from  the  Constitution  and  Con 

gressional  legislation. 
Such  petitions  are  not  within  the  letter  or  spirit  of  the  grants  of  appellate 

jurisdiction  to  this  court. 
A  military  commission  is  not  a  court  within  the  meaning  of  Section  14  of  Act 

of  1780. 
This  Court  has  no  power  to  originate  a  writ  of  certiorari,  or  to  review  or  pro 

nounce  any  opinion  upon  the  proceedings  of  a  military  commission. 
Affirmative  words  in  the  Constitution,  giving  this  Court  original  jurisdiction 

in  certain  cases,  must  be  construed  negatively  as  to  all  other  cases. 

The  petitioner  was,  on  May  5,  1863,  arrested  at  his  residence, 
taken  to  Cincinnati,  and  on  the  next  day,  arraigned  before  a  mili- 
taiT  commission,  appointed  by  Major-General  Burnside.  command- 
ing  the  Military  Department  of  Ohio,  on  a  charge  of  having  ex- 
Pressed  sympathies  for  those  in  arms  against  the  United  States 
Government,  and  for  having  uttered  in  a  public  speech  disloyal 
sentiments  and  opinions.  The  petitioner  refused  to  plead,  and 
denied  the  jurisdiction  of  the  commission.  A  plea  of  "  not  guilty" 
was  therefore  entered  by  the  order  of  the  commission,  and  the  trial 
proceeded.  Seven  members  of  the  commission  were  present,  and 
tried  the  charge  according  to  military  law.  The  prisoner  called 
and  cross-examined  witnesses  ;  had  the  aid  of  counsel,  and  made  a 
written  argument. 

The  finding  and  sentence  were  that  the  petitioner  was  guilty  of 
?ie  substantial  charges,  and  that  he  be  placed  in  close  confinement 
in  some  fortress  of  the  United  States,  there  to  be  kept  during  the 
remainder  of  the  war.  General  Burnside  approved  the  finding 
and  sentence,  and  designated  Fort  Warren  as  the  place  of  con- 
finement.  On  the  19th  of  May,  1863,  the  President,  in  commuta- 
tion  of  the  sentence,  directed  the  prisoner  to  be  sent  beyond  our 
military  lines,  which  order  was  executed. 

Mr.  Justice  Wayne  delivered  the  opinion  of  the  Court  in  which 
Nelson,  J.,  concurred.  After  giving  a  detailed  statement  of  the 
facts  above  briefly  set  forth,  they  continue  as  follows  :  — 

"  It  has  been  urged  in  support  of  the  motion  for  the  writ  of  cer~ 


APPENDIX.  525 

tiorari,  and  against  the  jurisdiction  of  a  military  commission  to  try  Constitu- 
the  petitioner!  that  the  latter  was  prohibited  lay  the  30th  section™1^' 
of  the  Act  of  March  30,  1863,  for  enrolling  and  calling  out  the  na-  stated, 
tional  forces,  — 12  Statutes  at  Large,  736,  — as  the  crimes  punisha 
ble  in  it  by  the  sentence  of  a  court-martial  or  a  military  commission 
applied  only  to  persons  who  are  in  the  military  service  of  the 
United  States,  and  subject  to  the  articles  of  war  ;  and  also, 
that  by  the  third  section  of  the  3d  Article  of  the  Constitution,  all 
crimes,  except  in  cases  of  impeachment,  were  to  be  tried  by  juries 
in  the  State  where  the  crime  had  been  committed,  and  when  not 
committed  within  any  State,  at  such  place  as  Congress  may  by 
law  have  directed ;  and  that  the  military  commission  could  have 
no  jurisdiction  to  try  the  petitioner,  as  neither  the  charge  against 
him  nor  its  specifications  imputed  to  him  any  offence  known  to  the 
law  of  the  land ;  that  General  Burnside  had  no  authority  to  en 
large  the  jurisdiction  of  a  military  commission  by  the  General  Order 
Number  thirty-eight,  or  otherwise.  General  Burnside  acted  in  the 
matter  as  the  general  commanding  the  Ohio  Department,  in  con 
formity  with  the  instructions  for  the  government  of  the  armies  of 
the  United  States,  approved  by  the  President  of  the  United  States, 
and  published  by  the  Assistant  Adjutant-General,  by  order  of  the 
Secretary  of  War,  on  the  24th  of  April,  1863.* 

It  is  affirmed  in  the  thirteenth  paragraph  of  the  first  section  of 
these  Instructions,  that  "  military  jurisdiction  is  of  two  kinds  :  first, 
that  which  is  conferred  and  defined  by  statute;  second,  that  which 
is  derived  from  the  common  law  of  war.  Military  offences,  under 
the  statute,  must  be  tried  in  the  manner  therein  directed ;  but  mil 
itary  offences  which  do  not  come  within  the  statute  must  be  tried 
and  punished  under  the  common  law  of  war.  The  character  of  the 
courts  which  exercise  these  jurisdictions  depends  upon  the  local  law 
of  each  particular  country.  In  the  armies  of  the  United  States, 
the  first  is  exercised  by  courts  martial ;  while  cases  which  do  not 
come  within  the  '  rules  and  articles  of  war,'  or  the  jurisdiction  con 
ferred  by  statute  or  court  martial,  are  tried  by  military  commis 
sions." 

These  jurisdictions  are  applicable,  not  only  to  war  with  foreign 
nations,  but  to  a  rebellion,  when  a  part  of  a  country  wages  war 
against  its  legitimate  government,  seeking  to  throw  off  all  alle- 
gfance  to  it  to  set  up  a  government  of  its  own. 

Our  first  remark  upon  the  motion  for  a  certiorari  is,  that  there 
is  no  analogy  between  the  power  given  by  the  Constitution  and 
laws  of  the  United  States  to  the  Supreme  Court  and  the  other  in 
ferior  courts  of  the  United  States,  and  to  the  judges  of  them  to  issue 
such  processes,  and  the  prerogative  power  by  which  it  is  done  in 
England.  The  purposes  for  which  the  writ  is  issued  are  alike,  but 
there  is  no  similitude  in  the  origin  of  the  power  to  do  it.  In  Eng 
land  the  Court  of  King's  Bench  has  a  superintendence  over  all 
courts  of  an  inferior  criminal  jurisdiction,  and  may,  by  the  pleni 
tude  of  its  power,  award  a  certiorari  to  have  any  indictment  re 
moved  and  brought  before  it ;  and  where  such  certiorari  is  allow 
able,  it  is  awarded  at  the  instance  of  the  king,  because  every 
indictment  is  (at  the  suit  of  the  king,  and  he  has  a  prerogative  of 
suing  in  whatever  court  he  pleases.  The  courts  of  the  United 

*  They  were  prepared  by  Francis  Leiber,  LL.  D.,  and  were  revised  by  a 
board  of  officers,  of  which  Major-General  E.  A.  Hitchcock  was  president. 


526  APPENDIX. 

States  derive  authority  to  issue  such  a  writ  from  the  Constitution  and 
the  legislation  of  Congress.  To  place  the  two  sources  of  the  right 
to  issue  the  writ  in  obvious  contrast,  and  in  application  to  the  mo 
tion  we  are  considering  for  its  exercise  by  this  Court,  we  will  cite  so 
much  of  the.  third  article  of  the  Constitution  as  we  think  will  best 
illustrate  the  subject.  "  The  judicial  power  of  the  United  States 
shall  be  vested  in  the  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may,  from  time  to  time,  ordain  and  establish."  "  The 
judicial  power  shall  extend  to  all  cases  in  law  and  equity,  arising 
under  the  Constitution,  the  laws  of  the  United  States,  and  treaties 
made  or  which  shall  be  made  under  their  authority  ;  to  all  cases 
affecting  embassadors,  other  public  ministers  and  consuls,"  etc., 
"and  in  all  cases  affecting  embassadors,  other  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  a  party,  the  Supreme  Court 
shall  have  original  jurisdiction.  In  all  other  cases  before  men 
tioned,  the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions,  and  under  such  regulations, 
as  the  Congress  shall  make."  Then  Congress  passed  the  act  to  es 
tablish  the  judicial  courts  of  the  United  States,  —  1  Stats,  at  Lar^e, 
p.  73,  chap.  20,  —  and  in  the  13th  section  of  it  declared  that  tlie 
Supreme  Court  shall  have  exclusively  all  such  jurisdiction  of  suits 
or  proceedings  against  embassadors  or  other  public  ministers  or 
their  domestics  or  their  domestic  servants  as  a  court  of  law  can 
have  or  exercise  consistently  with  the  laws  of  nations,  and  original 
but  not  exclusive  jurisdiction  of  suits  brought  by  embassadors,  or 
other  public  ministers,  or  in  which  a  consul  or  vice-consul  shall  be  a 
party.  In  the  same  section  the  Supreme  Court  is  declared  to  have 
appellate  jurisdiction  in  cases  hereinafter  expressly  provided.  In 
this  section,  it  will  be  perceived  that  the  jurisdiction  given,  besides 
that  which  is  mentioned  in  the  preceding  part  of  the  section,  is  an 
exclusive  jurisdiction  of  suits  or  proceedings  against  embassadors  or 
other  public  ministers  or  their  domestics  or  domestic  servants,  as  a 
court  of  law  can  have  or  exercise  consistently  with  the  laws  of  na 
tions,  and  original,  but  not  exclusive,  jurisdiction  of  all  suits  brought 
by  embassadors,  or  other  public  ministers,  or  in  which  a  consul  or 
vice-consul  shall  be  a  party,  thus  guarding  them  from  all.  other  ju 
dicial  interference  and  giving  to  them  the  right  to  prosecute  for 
their  own  benefit  in  the  courts  of  the  United  States.  Thus  sub 
stantially  reaffirming  the  constitutional  declaration  that  the  Su 
preme  Court  had  original  jurisdiction  in  all  cases  affecting  embassa 
dors  and  other  public  ministers  and  consuls  and  those  in  /which  a 
State  shall  be  a  party,  and  that  it,  shall  have  appellate  jurisdiction 
in  all  other  cases  before  mentioned,  both  as  to  law  and  fact,  with 
such  exceptions  and  under  such  regulations  as  the  Congress  shall 
make. 

The  appellate  powers  of  the  Supreme  Court,  as  granted  by  the 

Constitution,  are  limited  and  regulated  by  the  acts  of  Congress,  and 

must  be  exercised  subject  to  the  exceptions  and  regulations  made 

by  Congress.     Durousseau  vs.  The  United  States,  6  Cranch,  314  ; 

Barry  vs.  Mercien,  5  How.  119  ;  United  States  vs.  Currey,  6  How. 

113  ;  Forsyth  vs.  United  States,  9  How.  571.     In  other  words,  the 

A  military  petition  before  us  we  think  not  to  be  within  the  letter  or  spirit  of 

Stacour£*e  ?rants  of  appellate  jurisdiction  to  the  Supreme  Court.     It  is 

within    the  not  in  law  or  equity  within  the  meaning  of  those  terms,  as  used  in 

t?ieaiJudic°if  the  tllird  ar^icle  of  tlie  Constitution.     Nor  is  a  military  commission 

ary  Act.       a  court  within  the  meaning  of  the  14th  section  of  the  Judiciary  Act 


APPENDIX. 


527 


of  1  789.  That  act  is  denominated  to  be  one  to  establish  the  judicial 
courts  of  the  United  States,  and  the  14th  section  declares  that  all 
the  'before-mentioned'  courts  of  the  United  States  shall  have 
power  to  issue  writs  of  scire  facias,  habeas  corpus,  and  all  other 
writs  not  specially  provided  for  by  statute,  which  may  be  necessary 
for  the  exercise  of  their  respective  jurisdictions  agreeably  to  the 
principles  and  usages  of  law.  The  words  in  the  section,  '  the  be 
fore-mentioned  '  courts,  can  only  have  reference  to  such  courts  as 
were  established  in  the  preceding  part  of  the  act,  and  excludes  the 
idea  that  a  court  of  military  commission  can  be  one  of  them. 
Whatever  may  be  the  force  of  Vallandigham's  protest,  that  he  was 
not  triable  by  a  court  of  military  commission,  it  is  certain  that  his 
petition  cannot  be  brought  within  the  fourteenth  section  of  the  Act  ; 
and  further  that  the  court  cannot,  without  disregarding  its  frequent 
decisions  and  interpretations  of  the  Constitution  in  respect  to  its  No  certlora- 
judicial  power,  originate  a  writ  of  certiorari  to  review  or  pronounce  {JJJFflJJ118 
any  opinion  upon  the  proceedings  of  a  military  commission.  It  Supreme 
was  natural,  before  the  sections  of  the  third  articles  of  the  Constitu-  Court  toje- 
tion  had  been  fully  considered  in  connection  with  the  legislation  of  cee(jinjrg  "Of 
Congress,  giving  to  the  courts  of  the  United  States  power  to  issue  a  military 
writs  of  scire  facias,  habeas  corpus,  and  all  other  Avrits  not  specially 
provided  for  by  statute,  which  might  be  necessary  for  the  exercise 
of  their  respective  jurisdiction,  that  by  some  members  of  the  profes 
sion  it  should  have  been  thought,  and  some  of  the  early  judges  of 
the  Supreme  Court  also,  that  "the  14th  section  of  the  Act  of  24th 
September,  1789,  gave  to  this  court  a  right  to  originate  processes  of 
habeas  corpus  ad  subjicicndum  and  writs  of  certiorari,  to  review  the 
proceedings  of  the  inferior  courts  as  a  matter  of  original  jurisdic 
tion,  without  being  in  any  way  restricted  by  the  constitutional  lim 
itation  that  in  all  cases  affecting  embassadors,  other  public  ministers 
and  consu-ls,  and  those  in  which  a  State  shall  be  a  party,  the  Su 
preme  Court  shall  have  original  jurisdiction. 

This  limitation  has  always  been  considered  restrictive  of  any 
other  original  jurisdiction.  The  rule  of  construction  of  the  Con 
stitution  being,  that,  affirmative  words  in  the  Constitution  declaring 
in  what  cases  the  Supreme  Court  shall  have  original  jurisdiction, 
must  be  construed  negatively  as  to  all  other  cases.  1  Cranch,  137  ; 
5  Peters,  284  ;  12  Peters,  637  ;  9  Wheaton  ;  6  Wheaton,  264. 

The  nature  and  extent  of  the  court's  appellate  jurisdiction  and 
its  want  of  it  to  issue  writs  of  habeas  corpus  ad  subjiciendum,  have 
been  fully  discussed  by  this  court  at  different  times.  We  do  not 
think  it  necessary,  however,  to  examine  or  cite  many  of  them  at 
this  time.  We  will  annex  a  list  to  this  opinion,  distinguishing  what 
this  court's  action  has  been  in  cases  brought  to  it  by  appeal,  from 
such  applications  as  have  been  rejected,  when  it  has  been  asked  that 
it  would  act  upon  the  matter  as  one  of  original  jurisdiction.  In  the 
case  Ex  parte  Milburn,  9  Peters,  704,  Chief  Justice  Marshall  said,  as 
the  jurisdiction  of  the  court  is  appellate,  it  must  first  be  shown  that  it 
has  the  power  to  award  a  habeas  corpus.  In  Ex  parte  Kaine,  14  How 
ard,  the  court  denied  the  motion,  saying  that  the  court's  jurisdiction 
to  award  the  writ  was  appellative,  and  that  the  case  had  not  been  so 
presented  to  it,  and  for  the  same  cause  refused  to  issue  a  writ  of 
certiorari,  which  in  the  course  of  the  argument  was  prayed  for.  In 
Ex  parte  Metzgcr,  5  How.  176,  it  was  determined  that  a  writ  of 
certiorari  could  not  be  allowed  to  examine  a  commitment  by  a  dis 
trict  judge,  under  the  treaty  between  the  United  States  and  France, 


528 


APPENDIX. 


SSion  for  the  reason  tliat  the  judge  exercised  a  special  authority,  and  thai 
exercises  no  provision  had  been  made  for  the  revision  of  his  judgment.  So 
special  ^au-  does  a  court  of  military  commission  exercise  a  special  authority.  In 
>n  y;  the  case  before  us,  it  was  urged  that  the  decision  in  Metzger's  case 
had  been  made  upon  the  ground  that  the  proceeding  of  the  district 
judge  was  not  judicial  in  its  character,  but  that  the  proceedings  of 
the  military  commission  were  so ;  and,  further,  it  was  said  that  the 
ruling  in  that  case  had  been  overruled  by  a  majority  of  the  judges 
in  Kaine's  case.  There  is  a  misapprehension  of  the  report  of  The 
latter  case;  and  as  to  the  judicial  character  of  the  proceedings  of 
the  military  commission,  we  cite  Avhat  was  said  by  the  court  iifthe 
case  of  Ferreira.  "  The  powers  conferred  by  Congress  upon  the 
district  judge  and  the  secretary  are  judicial  in  their  nature,  for 
judgment  and  discretion  must  be  exercised  by  both  of  them,  but  it 
is  not  judicial  in  either  case,  in  the  sense  in  which  the  judicial 
power  is  granted  to  the  courts  of  the  United  States."  13  Howard, 
48. 

'N°r.  C?H  ^  ^e  safd.  tliat  the  autllority  to  be  exercised  by  a  military 
commission  is  judicial  in  that  sense.  It  involves  discretion  to  exam 
ine,  to  decide  and  sentence,  but  there  is  no  original  jurisdiction  in  the 


Court6  action  in  such  matters,  and  those  acting  in  them  under  his  author 
ity,  we  refer  to  the  opinions  expressed  by  this  court  in  the  cases  of 
Martin  vs.  Mott,  1 2  Wheaton,  pages  19,  28  to  35  inclusive ;  and  Dynes 
vs.  Hoover,  20  Howard,  page  65,  &c. 

For  the  reasons  given,  our  judgment  is,  that  the  writ  of  certio- 
rari  prayed  for  to  revise  and  review  the  proceedings  of  the  military 
commission,  by  which  Clement  L.  Vallandigham  was  tried,  sen 
tenced,  and  imprisoned,  must  be  denied,  and  so  do  we  order  ac 
cordingly." 


APPENDIX.  529 

THE  CHEROKEE  NATION  v.  THE  STATE  OF  GEORGIA,  5  Peters,  1. 
This  case  is  thus  stated  by  Nelson.  J.,  in  delivering  the  opinion  of  the 
court  in  6  Wallace,  73,  74  :  — 

A  bill  was  filed  in  that  case,  and  an  injunction  prayed  for  to  prevent  the 
execution  of  certain  acts  of  the  legislature  of  Georgia  within  the  territory  of 
the  Cherokee  nation  of  Indians,  they  claiming  a  right  to  file  it  in  this  court, 
in  the  exercise  of  its  original  jurisdiction,  as  a  foreign  nation.  The  acts  of 
the  legislature,  if  permitted  to  be  carried  into  execution,  would  have  sub 
verted  the  tribal  government  of  the  Indians,  and  subjected  them  to  the  juris 
diction  of  the  State.  The  injunction  was  denied,  on  the  ground  that  the 
Cherokee  nation  could  not  be  regarded  as  a  foreign  nation  within  the  judi 
ciary  act,  and  that  therefore  they  had  no  standing  in  court.  But  Chief  Jus 
tice  Marshall,  who  delivered  the  opinion  of  the  majority,  very  strongly 
intimated  that  the .  bill  was  untenable  on  another  ground,  namely,  that  it 
involved  simply  a  political  question.  He  observed  "  that  the  part  of  the  bill 
which  respects  the  land  occupied  by  the  Indians,  and  prays  the  aid  of  the 
court  to  protect  their  possessions,  may  be  more  doubtful.  The  mere  ques 
tion  of  right  might,  perhaps,  be  decided  by  this  court  in  a  proper  case  with 
proper  parties.  But  the  court  is  asked  to  do  more  than  decide  on  the  title. 
The  bill  requires  us  to  control  the  legislature  of  Georgia,  and  to  restrain  the 
exertion  of  its  physical  force.  The  propriety  of  such,  an  interposition  by 
the  court  may  be  well  questioned.  It  savors  too  much  of  the  exercise  of 
political  power  to  be  within  the  province  of  the  judicial  department." 
Several  opinions  were  delivered  in  the  case,  a  very  elaborate  one  by  Mr. 
Justice  Thompson,  in  which  Judge  Story  concurred.  They  maintained  that 
the  Cherokee  natio-n  was  a  foreign  nation  within  the  judiciary  act,  and  com 
petent  to  bring  the  suit,  but  agreed  with  the  Chief  Justice  that  all  the  mat 
ters  set  up  in  the  bill  involved  political  questions,  with  the  exception  of  the 
right  and  title  of  the  Indians  to  the  possession  of  the  lands  which  they  occu 
pied.  Mr.  Justice  Thompson,  referring  to  this  branch  of  the  case,  ob 
served,  — 

"  For  the  purpose  of  guarding  against  any  erroneous  conclusions,  it  is 
proper  I  should  state  that  I  do  not  claim  for  this  court  the  exercise  of  juris 
diction  upon  any  matter  properly  falling  under  the  denomination  of  political 
power.  Relief,  to  the  full  extent  prayed  for  by  the  bill,  may  be  beyond  the 
reach  of  this  court.  Much  of  the  matters  therein  contained  by  way  of  com 
plaint  would  seem  to  depend  for  relief  upon  the  exercise  of  political  power, 
and  as  such  appropriately  devolving  upon  the  executive  and  not  the  judicial 
department  of  the  government.  This  court  can  grant  relief  so  far,  only,  as 
the  rights  of  persons  or  property  are  drawn  in  question,  and  have  been  im 
pinged.'^ 

And,  in  another  part  of  the  opinion,  he  returns  again  to  this  question,  and 
is  still  more  emphatic  in  disclaiming  jurisdiction.  He  observes,  "  I  cer 
tainly  do  not  claim,  as  belonging  to  the  judiciary,  the  exercise  of  political 
power.  That  belongs  to  another  branch  of  the  government.  The  protec 
tion  and  improvement  of  many  rights  secured  by  treaties  most  certainly  does 
not  belong  to  the  judiciary.  It  is  only  wrhere  the  rights  of  persons  and 
property  are  involved,  and  when  such  rights  can  be  presented  under  some 
judicial  form  of  proceedings,  that  courts  of  justice  can  interpose  relief.  This 
court  can  have  no  right  to  pronounce  an  abstract  opinion  upon  the  constitu 
tionality  of  a  State  law.  Such  law  must  be  brought  into  actual  or  threat 
ened  operation  upon  rights  properly  falling  under  judicial  cognizance,  or  a 

67 


530  APPENDIX. 

remedy  is  not  to  be  had  here."  "  We  have  said,"  continues  Judge  Nelson, 
"  that  Mr.  Justice  Story  concurred  in  this  opinion,  and  Mr.  Justice  John- 
eon,  who  also  delivered  one,  recognized  the  same  distinctions."  (5  Peters, 
29,  30). 


THE  STATE  OF  RHODE  ISLAND  v.  THE  STATE  OF  MASSACHUSETTS, 
12  Peters,  657. 

(Distinction  between  political  and  judicial  matters,  &c.  Courts  have  no 
jurisdiction  of  political  questions.) 

This  case  involved  a  question  of  boundary  between  the  two  States.  It 
has  been  said  that  this  was  a  political  controversy  between  the  parties.  But 
Mr.  Justice  Baldwin,  who  delivered  the  opinion  of  the  court,  declared  that 
the  controversy,  as  developed  in  the  pleadings,  was  as  to  the  locality  of  a 
point  three  miles  south  of  the  southernmost  point  of  Charles  River,  and  as 
to  the  question  whether  a  stake  set  up  on  Wrentham  Plain  in  1842  was  the 
true  point  from  which  to  run  an  east  and  west  line  as  the  compact  boun 
dary  between  the  two  States.  "  In  the  first  aspect  of  the  case  it  depends 
on  a  fact  ;  in  the  second,  on  the  law  of  equity  whether  the  agreement  is  void 
or  valid  ;  neither  of  which  present  a  political  controversy,  but  one  of  an  or- 
ordinary  judicial  nature,  of  frequent  occurrence  in  suits  between  indi 
viduals." 

In  another  part  of  the  opinion,  speaking  of  the  submission  by  sovereigns 
or  states  of  a  controversy  between  them,  he  says,  "  From  the  time  of  such 
submission,  the  question  ceases  to  be  a  political  one,  to  be  decided  by  the 
sic  volo,  sicjubeo,  of  political  power." 

The  court  (Nelson,  J.),  in  commenting  on  this  decision  in  the  case  of  The 
State  of  Georgia  v.  Stanton  (6  Wallace,  73),  expressly  declare  that  "  the 
objections  to  the  jurisdiction  of  the  court  in  that  case  were,  that  the  subject 
matter  of  the  bill  involved  sovereignty  and  jurisdiction,  which  were  not 
matters  of  property,  but  of  political  rights  over  the  territory  in  question. 
They  are  forcibly  stated  by  the  Chief  Justice,  who  dissented  from  the  opin 
ion  (12  Pet.  752,  754.)  The  very  elaborate  examination  of  the  case  by  Mr. 
Justice  Baldwin  was  devoted  to  an  answer  and  refutation  of  these  objec 
tions.  He  endeavored  to  show,  and  we  think  did  show,  that  the  question 
was  one  of  boundary,  which  of  itself  was  not  a  political  question,  but  one  of 
property  appropriate  for  judicial  cognizance,  and  that  sovereignty  and  juris 
diction  were  but  incidental  and  dependent  upon  the  main  issue  in  the 
case." 

It  will  be  observed  that  Chief  Justice  Taney  denied  the  jurisdiction  of  the 
court  on  the  ground  that  the  cause  involved  the  determination  of  a  political 
question,  and  the  majority  of  the  court  claimed  jurisdiction  on  the  ground 
that  the  question  in  issue  was  not  a  political  question  ;  all  the  judges,  in 
their  opinions,  declared,  in  effect,  that  if  the  question  were  political,  the  court 
would  have  no  jurisdiction  over  it.  This  case  was  between  two  States  in 
the  Union,  and  not  between  the  United  States  and  a  third  party.  It  tends 
to  show  that  the  judicial  power  cannot  protect  or  enforce  the  mere  political 
jusisdiction  of  one  State  in  the  Union  against  another,  although  it  may  de 
termine  controversies  or  questions  of  property,  involving  the  ascertainment 
of  boundary  lines,  or  of  any  other  facts  which  have  been  settled  by  political 
authority,  and  in  all  its  proceedings  following  and  conforming  to  the  de 
cisions  of  the  political  departments  on  political  questions. 


APPENDIX.  531 


UNITED  STATES  v.  MORENO,  1  Wallace,  400. 

The  marginal  note  reads  thus :  "  The  cession  of  California  to  the  United 
States  did  not  impair  the  rights  of  private  property."  These  rights  were  con 
secrated  by  the  law  of  nations,  and  protected  by  the  treaty  of  Guadalupe 
Hidalgo.  The  act  of  March  3,  1851,  to  ascertain  and  settle  private  land 
claims  in  the  State  of  California,  was  passed  to  assure  to  the  inhabitants  of 
the  ceded  territory  the  benefit  of  the  rights  thus  secured  to  them.  It  recog 
nizes  both  legal  and  equitable  rights,  and  should  be  administered  in  a  lib 
eral  spirit. 


THE  CIRCASSIAN,  2  Wallace,  150.     (1864-5.) 

"  There  is  a  distinction  between  simple  and  public  blockades,  which  sup 
ports  this  conclusion"  (that  the  blockade  of  New  Orleans  was  continuous, 
and  had  not  been  interrupted).  "  A  simple  blockade  may  be  established  by 
a  naval  officer,  acting  upon  his  own  discretion,  or  under  direction  of  supe 
riors,  without  governmental  notification  ;  while  a  public  blockade  is  not  only 
established  in  fact,  but  is  notified,  by  the  government  directing  it,  to  other 
governments.  In  the  case  of  a  simple  blockade,  the  captors  are  bound  to 
prove  its  existence  at  the  time  of  capture ;  while  in  the  case  of  a  public 
blockade,  the  claimants  are  held  to  proof  of  discontinuance  in  order  to  pro 
tect  themselves  from  the  penalties  of  attempted  violation. 

"  The  blockade  of  the  rebel  ports  was  and  is  of  the  latter  sort.  It  was  le 
gally  established  and  regularly  notified  by  the  American  government  to  the 
neutral  governments.  Of  such  a  blockade  it  was  well  observed  by  Sir  Wil 
liam  Scott,  '  It  must  be  conceived  to  exist  till  the  revocation  of  it  is  ac 
tually  notified.'  The  blockade  of  the  rebel  ports,  therefore,  must  be  pre 
sumed  to  have  continued  until  notice  of  discontinuance  (The  Betsey,  Good- 
hue  master,  I  Robinson,  282  ;  The  Neptune,  1  id.  144).  It  is  indeed  the 
duty  of  the  belligerent  blockade  government  to  give  prompt  notice  ;  and  if 
it  fails  to  do  so,  proof  of  discontinuance  may  be  otherwise  made,  but  sub 
ject  to  just  responsibility  to  other  nations  ;  it  must  judge  for  itself  when  it 
can  dispense  with  blockade.  It  must  decide  when  the  object  of  blockade, 
namely,  prevention  of  commerce  with  enemies,  can  be  attained  by  military 
force,  or,  when  the  enemies  are  rebels,  by  military  force  and  municipal  law, 
without  the  aid  of  a  blockading  force.  The  government  of  the  United 
States  acted  on  these  views.  Upon  advice  of  the  capture  of  New  Orleans, 
it  decided  that  the  blockade  of  the  port  might  be  safely  dispensed  with,  ex 
cept  as  to  contraband  of  war,  from  and  after  the  1st  of  June.  The  Presi 
dent  therefore,  on  the  12th  of  May,  issued  his  proclamation  to  that  effect, 
and  its  terms  were  undoubtedly  notified  to  neutral  powers.  This  action  of 
the  government  must,  under  the  circumstances  of  this  case,  be  held  to  be 
conclusive  evidence  that  the  blockade  of  New  Orleans  was  not  terminated 
by  military  occupation  on  the  4th  of  May.  New  Orleans,  therefore,  was 
under  blockade  when  the  Circassian  was  captured." 


532 


APPENDIX. 


THE  VENICE,  2  Wallace,  274.     (64-5.) 

The  court  say,  that  "  while  these  transactions  were  in  progress  (April, 
1862),  the  war  was  flagrant.  The  States  of  Louisiana  and  Mississippi 
were  wholly  under  rebel  dominion,  and  all  the  people  of  each  State  were 
enemies  of  the  United  States.  The  rule  which  declares  that  war  makes  all 
the  citizens  or  subjects  of  one  belligerent  enemies  of  the  government,  and 
of  all  the  citizens  or  subjects  of  the  other,  applies  equally  to  civil  and  to  in 
ternational  wars.  (Prize  Cases,  2  Black.  266  ;  concurred  inby  dissenting  par 
ties,  id.  687-688.)  Either  belligerent  may  modify  or  limit  its  operation  as  to 
persons  or  territory  of  the  other  ;  but  in'the  absence  of  such  modification  or 
restriction  judicial  tribunals  cannot  discriminate  in  its  application." 

"  Cooke  was  a  British  subject,  but  was  identified  with  the  people  of 
Louisiana  by  long  voluntary  residence,  and  by  the  relations  of  active  busi 
ness.  (Prize  Cases,  2  Black.  674.)  Upon  breaking  out  of  the  war,  he  might 
have  left  the  State,  and  withdrawn  his  means ;  but  he  did  not  think  fit  to 
do  so.  He  remained  more  than  a  year,  engaged  in  commercial  transactions. 
Like  many  others,  he  seemed  to  have  thought  that,  as  a  neutral,  he  could 
share  the  business  of  the  enemies  of  the  nation,  and  enjoy  the  profits,  with 
out  incurring  the  responsibilities  of  an  enemy.  He  was  mistaken.  He 
chose  his  relations,  and  must  abide  by  their  results.  The  ship  and  cargo 
were  as  liable  to  seizure  as  prize  in  his  ownership  as  they  would  be  in  that 
of  any  citizen  of  Louisiana,  residing  in  New  Orleans,  and  not  actively  en 
gaged  in  hostilities  against  the  Union." 

_  After  explaining  the 'policy  of  the  government  to  respect  and  enforce  the 
rights  of  persons'  property  wherever  the  national  troops  had  re-established 
order  under  national  rule,  and  mentioning  the  proclamation  of  General  But 
ler  as  mere  manifestation  of  the  policy  of  government,  and  as  not  to  be 
interpreted  by  such  rules  as  governed  the  case  of  "  The  Ships  taken  at 
Genoa  "  (4  Robinson,  387),  the  court  say,  — 

"  Vessels  and  their  cargoes  belonging  to  citizens  of  New  Orleans,  or 
neutrals  residing  there,  and  not  affected  by  any  attempts  to  run  the  block 
ade,  or  by  any  act  of  hostility  against  the  "United  States,  after  the  publica 
tion  of  the  proclamation,  must  be  regarded  as  protected  by  its  terms. 

"  It  results  from  this  reasoning  that  the  Venice  and  her  cargo,  though 
undoubtedly  enemy's  property  at  the  time  she  was  anchored  in  Lake  Pont- 
chartrain,  cannot  be  regarded  as  remaining  such  after  the  6th  of  May,  for  it 
is  not  asserted  that  any  breach  of  blockade  was  ever  thought  of  by  the 
claimant,  or  that  he  was  guilty  of  any  act  of  hostility  against  the  national 
government." 


MRS.  ALEXANDER'S  COTTON,  2  Wallace,  417.     (1864-5.) 

The  Chief  Justice  delivered  the  opinion  of  the  Court. 

This  controversy  concerns  seventy-two  bales  of  cotton  captured  in  May, 
1864,  on  the  plantation  of  Mrs.  Elizabeth  Alexander,  on  the  Red  River,  by 
a  party  sent  from  the  Ouachita,  a  gunboat  belonging  to  Admiral  Porter's 
expedition.  The  United  States  insist  on  the  condemnation  of  the  cotton  as 
lawful  maritime  prize.  Mrs.  Alexander  claims  it  as  her  private  property. 
The  facts  may  be  briefly  stated. 

In  the  spring  of  1864,  a  naval  force  of  the  United  States,  under  Rear 
Admiral  Porter,  co-operating  with  a  military  fore*1  ,n  land,  under  Major 


APPENDIX.  533 

General  Banks,  proceeded  up  Red  River  towards  Shreveport,  in  Louis 
iana.  The  whole  region  at  the  time  was  in  rebel  occupation,  and  under 
rebel  rule. 

Fort  De  Russy,  about  midway  between  the  mouth  of  the  river  and 
Alexandria,  was  captured  by  the  Union  troops  about  the  middle  of  March. 
The  insurgent  troops  gradually  retired  until  a  considerable  district  of  coun 
try  on  Red  River  came  under  the  control  of  the  national  forces.  This 
control,  however,  was  of  brief  continuance.  An  unexpected  reverse  befell 
the  expedition.  The  army  under  General  Banks  was  defeated,  and  was  soon 
after  entirely  withdrawn  from  the  Red  River  country.  The  naval  force, 
under  Admiral  Porter,  necessarily  followed,  and  rebel  rule  and  ascendency 
were  again  complete  and  absolute.  The  military  occupation  by  the  Union 
troops  lasted  rather  less  than  eight  weeks.  Its  duration  was  measured 
by  the  time  required  for  the  advance  and  retreat  of  the  army  and  navy. 

The  Parish  of  Avoyelles  was  a  part  of  the  district  thus  temporarily  oc 
cupied  ;  and  the  plantation  of  Mrs.  Alexander  was  in  this  parish,  and  upon 
the  river.  The  seventy-two  bales  of  cotton  in  controversy  were  raised  on 
the  plantation,  and  were  stored  in  a  warehouse  about  a  mile  from  the  river 
bank.  A  party  from  the  Ouachita,  under  orders  from  the  naval  commander, 
landed  on  the  plantation  about  the  26th  of  March,  and  took  possession  of  the 
cotton.  It  was  sent  to  Cairo,  libelled  as  prize  of  war  in  the  District  Court 
for  the  Southern  District  of  Illinois,  claimed  by  Mrs.  Alexander,  and,  by 
decree  of  the  District  Court,  restored  to  her. 

The  United  States  now  ask  for  the  reversal  of  this  decree,  and  the  con 
demnation  of  the  property  as  maritime  prize. 

After  the  seizure  of  the  cotton,  Mrs.  Alexander  took  the  oath  required  by 
the  President's  proclamation  of  amnesty.  The  evidence  in  relation  to  her 
previous  personal  loyalty  is  somewhat  conflicting.  She  had  furnished  mules 
and  slaves,  involuntarily  as  alleged,  to  aid  in  the  construction  of  the  rebel 
Fort  De  Russy. 

She  now  remains  in  the  rebel  territory.  Before  the  retreat  of  the  Union 
troops,  elections  are  stated  to  have  been  held,  under  military  auspices,  for 
delegates  to  a  constitutional  convention  about  to  meet  in  New  Orleans. 

These  facts  present  the  question :  Was  this  cotton  lawful  maritime  prize, 
subject  to  the  prize  jurisdiction  of  the  courts  of  the  United  States  ? 

There  can  be  no  doubt,  we  think,  that  it  was  enemy's  property.  The 
military  occupation  by  the  national  military  forces  was  too  limited,  too  im 
perfect,  too  brief,  and  too  precarious  to  change  the  enemy  relation  created 
for  the  country  and  its  inhabitants  by  three  years  of  continuous  rebellion, 
interrupted,  at  last,  for  a  few  weeks,  but  immediately  renewed,  and  ever 
since  maintained.  The  Parish  of  Avoyelles,  which  included  the  cotton 
plantation  of  Mrs.  Alexander,  included  also  Fort  De  Russy,  constructed  in 
part  by  labor  from  the  plantation.  The  rebels  reoccupied  the  fort  as  soon  as 
it  was  evacuated  by  the  Union  troops,  and  have  since  kept  possession. 

It  is  said  that,  though  remaining  in  rebel  territory,  Mrs.  Alexander  has  no 
personal  sympathy  with  the  rebel  cause,  and  that  her  property  therefore  can 
not  be  regarded  as  enemy  property ;  but  this  court  cannot  inquire  into  the 
personal  character  and  dispositions  of  individual  inhabitants  of  enemy  ter 
ritory.  We  must  be  governed  by  the  principle  of  public  law,  so  often  an 
nounced  from  this  bench  as  applicable  alike  to  civil  and  international  wars, 
that  all  the  people  of  each  State  or  district  in  insurrection  against  the  United 
States  must  be  regarded  as  enemies,  until,  by  the  action  of  the  legislature 
and  the  Executive,  or  otherwise,  that  relation  is  thoroughly  and  permanently 
changed. 

We  attach  no  importance,  under  the  circumstances,  to  the  elections  said 
to  have  been  held  for  delegates  to  the  constitutional  convention. 


534 


APPENDIX. 


Being  enemy's  property,  the  cotton  was  liable  to  capture  and  confiscation 
by  the  adverse  party.*  It  is  true  that  this  rule,  as  to  property  on  land,  has 
received  very  important  qualifications  from  usage,  from  the  reasonings  of 
enlightened  publicists,  and  from  judicial  decisions.  It  may  now  be  regarded 
as  substantially  restricted  "  to  special  cases  dictated  by  the  necessary  opera 
tion  of  the  war,"  f  and  as  excluding,  in  general,  "  the  seizure  of  the  private 
property  of  pacific  persons  for  the  sake  of  gain."  J 

The  commanding  general  may  determine  in  what  special  cases  its  more 
stringent  application  is  required  by  military  emergencies ;  while  considera 
tions  of  public  policy  and  positive  provisions  of  law,  and  the  general  spirit 
of  legislation,  must  indicate  the  cases  in  which  its  application  maybe  proper 
ly  denied  to  the  property  of  non-combatant  enemies. 

In  the  case  before  us,  the  capture  seems  to  have  been  justified  by  the 
peculiar  character  of  the  property  and  by  legislation.  It  is  well  known  that 
cotton  has  constituted  the  chief  reliance  of  the  rebels  for  means  to  purchase 
the  munitions  of  war  in  Europe.  It  is  matter  of  history,  that  rather  than 
permit  it  to  come  into  the  possession  of  the  national  troops,  the  rebel  gov 
ernment  has  everywhere  devoted  it,  however  owned,  to  destruction.  The 
value  of  that  destroyed  at  New  Orleans,  just  before  its  capture,  has  been 
estimated  at  eighty  millions  of  dollars.  It  is  in  the  record  before  us,  that  on 
this  very  plantation  of  Mrs.  Alexander,  one  year's  crop  was  destroyed  in  ap 
prehension  of  an  advance  of  the  Union  forces.  The  rebels  regard  it  as  one 
of  their  main  sinews  of  war ;  and  no  principle  of  equity  or  just  policy  re 
quired,  when  the  national  occupation  was  itself  precarious,  that  it  should  be 
spared  from  capture  and  allowed  to  remain,  in  case  of  the  withdrawal  of  the 
Union  troops,  an  element  of  strength  to  the  rebellion. 

And  the  capture  was  justified  by  legislation  as  well  as  by  public  policy. 
The  act  of  Congress  to  confiscate  property  used  for  insurrectionary  purposes, 
approved  August  6,  1861,  declares  all  property  employed  in  aid  of  the  rebel 
lion,  with  consent  of  the  owners,  to  be  lawful  subject  of  prize  and  capture 
wherever  found.§  And  it  further  provided,  by  the  act  to  suppress  insurrec 
tion,  and  for  other  purposes,  approved  July  17,  1862,  ||  that  the  property  of 
persons  who  had  aided  the  rebellion,  and  should  not  return  to  allegiance 
after  the  President's  warning,  should  be  seized  and  confiscated.  It  is  in 
evidence  that  Mrs.  Alexander  was  a  rebel  enemy  at  the  time  of  the  enact 
ment  of  this  act ;  that  she  contributed  to  the  erection  of  Fort  De  Hussy, 
after  the  passage  of  the  act  of  July,  1862,  and  so  comes  within  the  spirit,  if 
not  within  the  letter,  of  the  provisions  of  both. 

If,  in  connection  with  these  acts,  the  provisions  of  the  Captured  and 
Abandoned  Property  Act  of  March  12,  1863,f  be  considered,  it  will  be  dif 
ficult  to  conclude  that  the  capture  under  consideration  was  not  warranted  by 
law.  This  last-named  act  evidently  contemplated  captures  by  the  naval 
forces  distinct  from  maritime  prize  ;  for  the  secretary  of  the  navy,  by  his 
order  of  March  31,  1863,  directed  all  officers  and  sailors  to  turn  over  to  the 
agents  of  the  Treasury  Department  all  property  captured  or  seized  in  any  in 
surrectionary  district,  excepting  lawful  maritime  prize.**  Were  this  other- 
\vise,  the  result  would  not  be  different,  for  Mrs.  Alexander,  being  now  a 
resident  in  enemy  territory,  and  in  law  an  enemy,  can  have  no  standing  in 
any  court  of  the  United  States  so  long  as  that  relation  shall  exist.  What 
ever  might  have  been  the  effect  of  the  amnesty  had  she  removed  to  a  loyal 
State  after  taking  the  oath,  it  can  have  none  on  her  relation  as  enemy 
voluntarily  resumed  by  confirmed  residence  and  interest. 

*  Prize  Cases,  2  Black.  687.  f  1  Kent,  92.  J  Id.  93. 

§  12  Stat.  at  Large,  319.  ||  Id.  591.  IF  Id.  820. 

**  Report  of  the  Secretary  of  the  Treasury  on  the  Finances,  December  10,  1863,  p.  438. 


APPENDIX.  535 


But  this  reasoning,  while  it  supports  the  lawfulness  of  the  capture,  by  no 
means  warrants  the  conclusion  that  the  property  captured  was  maritime 
prize.  We  have  carefully  considered  all  the  cases  cited  by  the  learned 
counsel  for  the  captors,  and  are  satisfied  that  neither  of  them  is  an  authority 
for  that  conclusion.  In  no  one  of  these  cases  does  it  appear  that  private 
property  on  land  was  held  to  be  maritime  prize;  and  on  the  other  hand,  wre 
have  met  with  no  case  in  which  the  capture  of  such  private  property  was 
held  unlawful  except  that  of  Thorshaven.*  In  this  case  such  a  capture  was 
held  unlawful,  not  because  the  property  was  private,  but  because  it  was  pro 
tected  by  the  terms  of  a  capitulation.  The  rule  in  the  British^  Court  of 
Admiralty  seems  to  have  been  that  the  court  would  take  jurisdiction  of  the 
capture,  whether  of  public  or  private  property,  and  condemn  the  former 
for  the  benefit  of  the  captors,  under  the  prize  acts  of  Parliament,  but  retain 
the  later  till  claimed,  or  condemn  it  to  the  crown,  to  be  disposed  of  as  justice 
might  require.  But  it  is  hardly  necessary  to  go  into  the  examination  of  these 
English  adjudications,  as  our  own  legislation  supplies  all  needed  guidance  in 
the  decision  of  this  case. 

There  is  certainly  no  authority  to  condemn  any  property  as  prize  for  the 
benefit  of  the  captors,  except  under  the  law  of  the  country  in  whose  service 
the  capture  is  made  ;  and  the  whole  authority  found  in  our  legislation  is  con 
tained  in  the  act  for  the  better  government  of  the  navy,  approved  July  17, 
1862.  By  the  second  section  of  the  act,f  it  is  provided  that  the  proceeds  of 
all  ships  and  vessels,  and  the  goods  taken  on  board  of  them,  which  shall  be 
adjudged  good  prize,  shall  be  the  sole  property  of  the  captors,  or,  in  certain 
cases,  divided  equally  between  the  captors  and  the  United  States.  By  the 
twentieth  section,  all  provisions  of  previous  acts  inconsistent  with  this  act 
are  repealed.  This  act  excludes  property  on  land  from  the  category  of  prize 
for  the  benefit  of  captors,  and  seems  to  be  decisive  of  the  case  so  far  as  the 
claims  of  captors  are  concerned. 

As  a  case  of  lawfully  captured  property,  not  for  the  benefit  of  captors,  its 
disposition  is  controlled  by  the  laws  relating  to  such  property.  By  these 
laws  and  the  orders  under  them,  all  officers,  military  and  naval,  and  all 
soldiers  and  sailors,  are  strictly  enjoined,  under  severe  penalties,  to  turn  over 
any  such  property  which  may  come  to  their  possession  to  the  agents  of  the 
Treasury  Department ;  and  these  agents  are  required  to  sell  all  such  property 
to  the  best  advantage,  and  pay  the  proceeds  into  the  national  treasury.  Any 
claimant  of  the  property  may,  at  any  time  within  two  years  after  the  sup 
pression  of  the  rebellion,  bring  suit  in  the  Court  of  Claims,  and  on  proof  of 
ownership  of  the  property,  or  of  title  to  the  proceeds,  and  that  the  claimant 
has  never  given  aid  or  comfort  to  the  rebellion,  have  a  decree  for  the  pro 
ceeds,  deducting  lawful  charges.  In  this  war,  by  this  liberal  and  beneficent 
legislation,  a  distinction  is  made  between  those  whom  the  rule  of  interna 
tional  law  classes  as  enemies.  All  who  have  in  fact  maintained  a  loyal  ad 
hesion  to  the  Union  are  protected  in  their  rights  to  captured  as  well  as 
abandoned  property. 

It  seems  that,  in  further  pursuance  of  the  same  views,  by  an  act  of  the 
next  session,  Congress  abolished  maritime  prize  on  inland  waters,  and  re 
quired  captured  vessels,  and  goods  on  board,  as  well  as  all  other  captured 
property,  to  be  turned  over  to  the  treasury  agents,  or  to  the  proper  officers 
of  the  courts.  This  act  became  a  law  a  few  weeks  after  the  capture  now 
under  consideration,  and  does  not  apply  to  it.  It  is  cited  only  in  illustra 
tion  of  the  general  policy  of  legislation  to  mitigate,  as  far  as  practicable,  the 
harshness  of  the  rules  of  war,  and  preserve  for  loyal  owners,  obliged  by 

*  Edwards,  107.  t  12  Stat.  at  Large,  606. 


536  APPENDIX. 


circumstances  to  remain  in  rebel  States,  all  property,  or  its  proceeds,  to  which 
they  have  just  claims,  and  which  may  in  any  way  come  to  the  possession  of 
the  government  or  its  officers. 

We  think  it  clear  that  the  cotton  in  controversy  was  not  maritime  prize, 
but  should  have  been  turned  over  to  the  agents  of  the  Treasury  Department, 
to  be  disposed  of  under  the  act  of  March  12,  1863.  Not  having  been  so 
turned  over,  but  having  been  sold  by  order  of  the  District  Court,  its  pro 
ceeds  should  now  be  paid  into  the  treasury  of  the  United  States,  in  order 
that  the  claimant,  when  the  rebellion  is  suppressed,  or  she  has  been  able  to 
leave  the  reoel  region,  may  have  the  opportunity  to  bring  her  suit  in  the 
Court  of  Claims,  and,  on  making  the  proof  required  by  the  act,  have  the 
proper  decree. 

The  decree  of  the  District  Court  is  reversed. 


Ex  PARTE  MILLIGAN,  4  Wallace  S.  C.  Rep.  106.     (Dec.  Term,  1866.) 

At  the  close  of  the  last  term  the  Chief  Justice  announced  the  order  of 
the  court  in  this  and  in  two  other  similar  cases  (those  of  Bowles  and  Hor 
sey)  as  follows  :  — 

1.  That,  on  the   facts    stated   in  said  petition   and   exhibits,  a  writ  of 
habeas  corpus  ought  to  be  issued,  according   to   the  prayer  of  the   said 
petitioner. 

2.  That,  on  the  facts  stated  in  the  said  petition  and  exhibits,  the  said 
Milligan  ought  to  be  discharged  from  custody,  as  in  said  petition  is  prayed, 
according  to  the  act  of   Congress  passed    March  3,    1863,  entitled   "  An 
Act  relating  to  habeas  corpus  and  regulating  judicial  proceedings  in  certain 
cases." 

3.  That,  on  the  facts    stated  in  said  petition  and  exhibits,  the  military 
commission  mentioned  therein  had  no  jurisdiction  legally  to  try  and  sentence 
said  Milligan  in  the  manner  and  form  as  in  said  petition  and  exhibits  are 
stated. 

At  the  opening  of  the  present  term,  opinions  were  delivered. 
Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

On  the  10th  day  of  May,  1865,  Lambdin  P.  Milligan  presented  a  petition 
to  the  Circuit  Court  of  the  United  States  for  the  District  of  Indiana,  to  be 
discharged  from  an  alleged  unlawful  imprisonment.  The  case  made  by  the 
petition  is  this :  Milligan  is  a  citizen  of  the  United  States ;  has  lived  for 
twenty  years  in  Indiana  ;  and,  at  the  time  of  the  grievances  complained  of, 
was  not,  and  never  had  been,  in  the  military  or  naval  service  of  the  United 
States.  On  the  5th  day  of  October,  1864.  while  at  home,  he  was  arrested 
by  order  of  General  Alvin  P.  Hovey,  commanding  the  military  district  of 
Indiana,  and  has  ever  since  been  kept  in  close  confinement. 

On  the  21st  day  of  October,  1864,  he  was  brought  before  a  military  com 
mission,  convened  at  Indianapolis,  by  order  of  General  Hovey,  tried  on 
certain  charges  and  specfications,  found  guilty,  and  sentenced  to  be  hanged ; 
arid  the  sentence  ordered  to  be  executed  on  Friday,  the  19th  day  of 
May,  1865. 

On  the  2d  day  of  January,  1865,  after  the  proceedings  of  the  military 
commission  were  at  an  end^  the  Circuit  Court  of  the  United  States  for 
Indiana  met  at  Indianapolis  and  impanelled  a  grand  jury,  who  were 
charged  to  inquire  whether  the  laws  of  the  United  States  had  been  violated  j 


APPENDIX.  537 

and,  if  so,  to  make  presentments.  The  court  adjourned  on  the  27th  day  of 
January,  having,  prior  thereto,  discharged  from  further  service  the  grand 
jury,  who  did  not  find  any  bill  of  indictment  or  make  any  presentment 
against  Milligan  for  any  offence  whatever  ;  and,  in  fact,  since  his  imprison 
ment,  no  bill  of  indictment  has  been  found  or  presentment  made  against 
him  by  any  grand  jury  of  the  United  States. 

Milligan  insists  that  said  military  commission  had  no  jurisdiction  to  try 
him  upon  the  charges  preferred,  or  upon  any  charges  whatever ;  because  he 
was  a  citizen  of  the  United  States  and  the  State  of  Indiana,  and  had  not 
been,  since  the  commencement  of  the  late  rebellion,  a  resident  of  any  of 
the  States  whose  citizens  were  arrayed  against  the  government^  and  that 
the  right  of  trial  by  jury  was  guaranteed  to  him  by  the  Constitution  of  the 
United  States. 

The  prayer  of  the  petition  was,  that  under  the  act  of  Congress,  approved 
March  3,  1863,  entitled  "  An  Act  relating  to  habeas  corpus,  and  regulating 
judicial  proceedings  in  certain  cases,"  he  may  be  brought  before  the  court, 
and  either  turned  over  to  the  proper  civil  tribunal  to  be  proceeded  against 
according  to  the  law  of  the  land,  or  discharged  from  custody  altogether. 

With  the  petition  were  filed  the  order  for  the  commission,  the  charges 
and  specifications,  the  findings  of  the  court,  with  the  order  of  the  War 
Department  reciting  that  the  sentence  was  approved  by  the  President  of  the 
United  States,  and  directing  that  it  be  carried  into  execution  without  delay. 
The  petition  was  presented  and  filed  in  open  court  by  the  counsel  for  Mil 
ligan  ;  at  the  same  time  the  District  Attorney  of  the  United  ^  States  for 
Indiana  appeared,  and,  by  the  agreement  of  counsel,  the  application  was 
submitted  to  the* court.  The  opinions  of  the  judges  of  the  Circuit  Court 
were  opposed  on  three  questions,  which  are  certified  to  the  Supreme  Court :  — 

1.  "On  the  facts  stated  in  said  petition  and  exhibits,  ought  a  writ  of 
habeas  corpus  to  be  issued  ?  " 

2.  "  On  the    facts  stated  in  said  petition  and  exhibits,  ought  the  said 
Lambdin  P.  Milligan  to  be  discharged  from  custody,  as  in  said  petition 
prayed  ?  " 

3.  "Whether,  upon  the  facts  stated  in  said  petition  and  exhibits,  the 
military  commission  mentioned  therein  had  jurisdiction  legally  to  try ^ and 
sentence  said  Milligan  in  manner  and  form  as  in  said  petition  and  exhibits 
are  stated  ?  " 

The  importance  of  the  main  question  presented  by  this  record  cannot  be 
overstated  ;  for  it  involves  the  very  framework  of  the  government  and  the 
fundamental  principles  of  American  liberty. 

During  the  late  wicked  rebellion,  the  temper  of  the  times  did  not  allow 
that  calmness  in  deliberation  and  discussion  so  necessary  to  a  correct  con 
clusion  of  a  purely  judicial  question.  Then  considerations  of  safety  were 
mingled  with  the  exercise  of  power,  and  feelings  and  interests  prevailed 
which  are  happily  terminated.  Now  that  the  public  safety  is  assured,  this 
question,  as  well  as  all  others,  can  be  discussed  and  decided  without  passion 
or  the  admixture  of  any  element  not  required  to  form  a  legal  judgment.  We 
approach  the  investigation  of  this  case,  fully  sensible  of  the  magnitude  of 
the  inquiry  and  the  necessity  of  full  and  cautious  deliberation. 

But  we  are  ,met  with  a 'preliminary  objection.  It  is  insisted  that  the 
Circuit  Court  of  Indiana  had  no  authority  to  certify  these  questions  ;  and 
that  we  are  without  jurisdiction  to  hear  and  determine  them. 

The  sixth  section  of  the  "  Act  to  amend  the  judicial  system  of  the  United 
States,"  approved  April  29,  1802,  declares  "'that  whenever  any  question 
shall  occur  before  a  Circuit  Court  upon  which  the  opinions  of  the  judges 
shall  be  opposed,  the  point  upon  which  the  disagreement  shall  happen  shall, 

68 


538  APPENDIX. 

during  the  .same  term,  upon  the  request  of  either  party  or  their  counsel,  be 
stated  under  the  direction  of  the  judges,  and  certified  under  the  seal  of  the 
court  to  the  Supreme  Court  at  their  next  session  to  be  held  thereafter,  and 
shall  by  the  said  court  be  finally  decided  :  And  the  decision  of  the  Supreme 
Court  and  their  order  in  the  premises  shall  be  remitted  to  the  Circuit  Court, 
and  be  there  entered  of  record,  and  shall  have  effect  according  to  the  nature 
of  the  said  judgment  and  order  :  Provided,  That  nothing  herein  contained 
shall  prevent  the  cause  from  proceeding,  if,  in  the  opinion  of  the  court, 
further  proceedings  can  be  had  without  prejudice  to  the  merits." 

It  is  under  this  provision  of  law,  that  a  Circuit  Court  has  authority  to 
certify  any  question  to  the  Supreme  Court  for  adjudication.  The  inquiry, 
therefore,  is,  whether  the  case  of  Milligan  is  brought  within  its  terms. 

It  was  admitted  at  the  bar  that  the  Circuit  Court  had  jurisdiction  to 
entertain  the  application  for  the  writ  of  habeas  corpus,  and  to  hear  and 
determine  it ;  and  it  could  not  be  denied,  for  the  power  is  expressly  given 
in  the  14th  section  of  the  Judiciary  Act  of  1789,  as  well  as  in  the  later  act 
of  1863.  Chief  Justice  Marshall,  in  Bollman's  case,*  construed  this  branch 
of  the  Judiciary  Act  to  authorize  the  courts  as  well  as  the  judges  to  issue 
the  writ  for  the  purpose  of  inquiring  into  the  cause  of  the  commitment ;  and 
this  construction  has  never  been  departed  from.  But  it  is  maintained  with 
earnestness  and  ability,  that  a  certificate  of  division  of  opinion  can  occur 
only  in  a  cause ,  and  that  the  proceeding  by  a  party  moving  for  a  writ  of 
habeas  corpus  does  not  become  a  cause  until  after  the  writ  has  been  issued 
and  a  return  made. 

Independently  of  the  provisions  of  the  act  of  Congress  of  March  3,  1863, 
relating  to  habeas  corpus,  on  which  the  petitioner  bases  his  claim  for  relief, 
and  which  we  will  presently  consider,  can  this  position  be  sustained  ? 

It  is  true,  that  it  is  usual  for  a  court,  on  application  for  a  writ  of  habeas 
corpus,  to  issue  the  writ,  and,  on  the  return,  to  dispose  of  the  case  ;  but  the 
court  can  elect  to  waive  the  issuing  of  the  writ,  and  consider  whether,  upon 
the  facts  presented  in  the  petition,  the  prisoner,  if  brought  before  it,  could 
be  discharged.  One  of  the  very  points  on  which  the  case  of  Tobias  Wat- 
kins,  reported  in  3  Peters,f  turned,  was,  whether,  if  the  writ  was  issued, 
the  petitioner  would  be  remanded  upon  the  case  which  he  had  made. 

The  Chief  Justice,  in  delivering  the  opinion  of  the  court,  said,  "  The 
cause  of  imprisonment  is  shown  as  fully  by  the  petitioner  as  it  could  appear 
on  the  return  of  the  writ ;  consequently  the  writ  ought  not  to  be  awarded 
if  the  court  is  satisfied  that  the  prisoner  would  be  remanded  to  prison." 

The  judges  of  the  Circuit  Court  of  Indiana  were,  therefore,  warranted  by 
an  express  decision  of  this  court  in  refusing  the  writ,  if  satisfied  that  the 
prisoner  on  his  own  showing  was  rightfully  detained. 

But  it  is  contended,  if  they  differed  about  the  lawfulness  of  the  imprison 
ment,  and  could  render  no  judgment,  the  prisoner  is  remediless,  and  cannot 
have  the  disputed  question  certified  under  the  act  of  1802.  His  remedy  is 
complete  by  writ  of  error  or  appeal,  if  the  court  renders  a  final  judgment 
refusing  to  discharge  him ;  but  if  he  should  be  so  unfortunate  as  to  be 
placed  in  the  predicament  of  having  the  court  divided  on  the  question 
whether  he  should  live  or  die,  he  is  hopeless  and  without  remedy.  He 
wishes  the  vital  question  settled,  not  by  a  single  judge  at  his  chambers,  but 
by  the  highest  tribunal  known  to  the  Constitution ;  and  yet  the  privilege  is 
denied  him  ;  because  the  Circuit  Court  consists  of  two  judges,  instead  of  one. 

Such  a  result  was  not  in  the  contemplation  of  the  legislature  of  1802;  and 
the  language  used  by  it  cannot  be  construed  to  mean  any  such  thing.  The 

*  4  Crunch,  75.  t  Page  193. 


APPENDIX.  539 

clause  under  consideration  was  introduced  to  further  the  ends  of  justice,  by 
obtaining  a  speedy  settlement  of  important  questions  where  the  judges 
might  be  opposed  in  opinion. 

The  act  of  1802  so  changed  the  judicial  system  that  the  Circuit  Court, 
instead  of  three,  was  composed  of  two  judges  ;  and,  without  this  provision 
or  a  kindred  one,  if  the  judges  differed,  the  difference  would  remain,  the 
question  be  unsettled,  and  justice  denied.  The  decisions  of  this  court  upon 
the  provisions  of  this  section  have  been  numerous.  In  United  States  v. 
Daniel,*  the  court,  in  holding  that  a  division  of  the  judges  on  a  motion  for 
a  new  trial  could  not  be  certified,  say,  that  "the  question  must  be  one 
which  arises  in  a  cause  depending  before  the  court  relative  to  a  proceeding 
belonging  to  the  cause."  Testing  Milligan's  case  by  this  rule  of  law,  is  it 
not  apparent  that  it  is  rightfully  here,  and  that  we  are  compelled  to  answer 
the  questions  on  which  the  judges  below  were  opposed  in  opinion  ?  If,  in 
the  sense  of  the  law,  the  proceeding  for  the  writ  of  habeas  corpus  was  the 
"  cause  "  of  the  party  applying  for  it,  then  it  is  evident  that  the  "  cause  " 
was  pending  before  the  court,  and  that  the  questions  certified^  arose  out  of 
it,  belonged  to  it,  and  were  matters  of  right,  and  not  of  discretion. 

But  it  is  argued,  that  the  proceeding  does  not  ripen  into  a  cause  until 
there  are  two  parties  to  it. 

This  we  deny.  It  was  the  cause  of  Milligan  when  the  petition  was  pre 
sented  to  the  Circuit  Court.  It  would  have  been  the  cause  of  both  parties, 
if  the  court  had  issued  the  writ  and  brought  those  who  held  Milligan  in 
custody  before  it.  Webster  defines  the  word  "  cause  "  thus  :  "  A  suit  or 
action  in  court ;  any  legal  process  which  a  party  institutes  to  obtain  his 
demand,  or  by  which  he  seeks  his  right,  or  supposed  right "  —  and  he  says, 
"this  is  a  legal,  scriptural,  and  popular  use  of  the  word,  coinciding  nearly 
with  case,  from  cado,  and  action,  from  ago,  to  urge  and  drive." 

In  any  legal  sense,  action,  suit,  and  cause  are  convertible  terms.  Mil 
ligan  supposed  he  had  a  right  to  test  the  validity  of  his  trial  and  sentence  ; 
and  the  proceeding  which  he  set  in  operation  for  that  purpose  was  his 
"  cause  "  or  "  suit."  It  was  the  only  one  by  which  he  could  recover  his 
liberty.  He  was  powerless  to  do  more  ;  he  could  neither  instruct  the 
judges  nor  control  their  action,  and  should  not  suffer,  because,  without  fault 
of  his,  they  were  unable  to  render  a  judgment.  But  the  true  meaning  to 
the  term  "  suit "  has  been  given  by  this  court.  One  of  the  questions  in 
Weston  v.  City  Council  'of  Charleston  t  was,  whether  a  writ  of  prohibition 
was  a  suit ;  and  Chief  Justice  Marshall  says,  "  The  term  is  certainly  a 
comprehensive  one,  and  is  understood  to  apply  to  any  proceeding  in  a  court 
of  justice  by  which  an  individual  pursues  that  remedy  which  the  law  affords 
him."  Certainly  Milligan  pursued  the  only  remedy  which  the  law  afforded 
him. 

Again,  in  Cohens  v.  Virginia, J  he  says,  "In  law  language  a  suit  is  the 
prosecution  of  some  demand  in  a  court  of  justice."  Also,  "  To  commence  a 
suit  is  to  demand  something  by  the  institution  of  process  in  a  court  of  jus 
tice  ;  and  to  prosecute  the  suit  is  to  continue  that  demand."  When  Milli 
gan  demanded  his  release  by  the  proceeding  relating  to  habeas  corpus,  he 
commenced  a  suit ;  and  he  has  since  prosecuted  it  in  all  the  ways  known  to 
the  law.  One  of  the  questions  in  Holmes  v.  Jennison  et  al.  §  was,  whether, 
under  the  twenty-fifth  section  of  the  Judiciary  Act,  a  proceeding  for  a  writ 
of  habeas  corpus  was  a  "  suit."  Chief  Justice  Taney  held,  that,  "  if  a  party 
is  unlawfully  imprisoned,  the  writ  of  habeas  corpus  is  his  appropriate  legal 
remedy.  It  is  his  suit  in  court  to  recover  his  liberty."  There  was  much 

*  6  Wheaton,  542.  f  2  Peters,  449.  J  6  Wheaton,  204.  §  14  Peters,  540. 


540  APPENDIX. 

diversity  of  opinion  on  another  ground  of  jurisdiction  ;  but  that,  in  the  sense 
of  the  twenty-fifth  section  of  the  Judiciary  Act,  the  proceeding  by  habeas 
corpus  was  a  suit,  was  not  controverted  by  any  except  Baldwin,  Justice, 
and  he  thought  that  "  suit  "  and  "  cause,"  as  used  in  the  section,  mean  the 
same  thing. 

The  court  do  not  say,  that  a  return  must  be  made,  and  the  parties  appear 
and  begin  to  try  the  case  before  it  is  a  suit.  When  the  petition  is  filed  and 
the  writ  prayed  for,  it  is  a  suit  —  the  suit  of  the  party  making  the  applica 
tion.  If  it  is  a  suit  under  the  twenty-fifth  section  of  the  Judiciary  Act  when 
the  proceedings  are  begun,  it  is,  by  all  the  analogies  of  the  law,  equally  a 
suit  under  the  sixth  section  of  the  act  of  1802. 

But  it  is  argued,  that  there  must  be  two  parties  to  the  suit,  because  the 
point  is  to  be  stated  upon  the  request  of  "  either  party  or  their  counsel." 

Such  a  literal  and  technical  construction  would  defeat  the  very  purpose 
the  legislature  had  in  view,  which  was  to  enable  any  party  to  bring  the  case 
here,  when  the  point  in  controversy  was  a  matter  of  right,  and  not  of  dis 
cretion  ;  and  the  words  "  either  party,"  in  order  to  prevent  a  failure  of  jus 
tice,  must  be  construed  as  words  of  enlargement,  and  not  of  restriction. 
Although  this  case  is  here  ex  parte,  it  was  not  considered  by  the  court  below 
without  notice  having  been  given  to  the  party  supposed  to  have  an  interest 
in  the  detention  of  the  prisoner.  The  statements  of  the  record  show  that 
this  is  not  only  a  fair,  but  conclusive  inference.  When  the  counsel  for  Mil- 
ligan  presented  to  the  court  the  petition  for  the  writ  of  habeas  corpus,  Mr. 
Hanna,  the  District  Attorney  for  Indiana,  also  appeared ;  and,  by  agreement, 
the  application  was  submitted  to  the  court,  who  took  the  case  under  advise 
ment,  and  on  the  next  day  announced  their  inability  to  agree,  and  made  the 
certificate.  It  is  clear  that  Mr.  Hanna  did  not  represent  the  petitioner,  and 
why  is  his  appearance  entered  ?  It  admits  of  no  other  solution  than  this, 
—  that  he  was  informed  of  the  application,  and  appeared  on  behalf  of  the 
government  to  contest  it.  The  government  was  the  prosecutor  of  Milligan, 
who  claimed  that  his  imprisonment  was  illegal,  and  sought,  in  the  only  way 
he  could,  to  recover  his  liberty.  The  case  was  a  grave  one ;  and  the  court, 
unquestionably,  directed  that  the  law  officer  of  the  government  should  be 
informed  of  it.  He  very  properly  appeared,  and,  as  the  facts  were  uncon- 
troverted  and  the  difficulty  was  in  the  application  of  the  law,  there  was  no 
useful  purpose  to  be  obtained  in  issuing  the  writ.  The  cause  was,  there 
fore,  submitted  to  the  court  for  their  consideration  and  determination. 

But  Milligan  claimed  his  discharge  from  custody  by  virtue  of  the  act  of 
Congress  "relating  to  habeas  corpus,  and  regulating  judicial  proceedings  in 
certain  cases,"  approved  March  3,  1863.  Did  that  act  confer  jurisdiction  on 
the  Circuit  Court  of  Indiana  to  hear  this  case  ? 

In  interpreting  the  law,  the  motives  which  must  have  operated  with  the 
legislature  in  passing  it  are  proper  to  be  considered.  This  law  was  passed 
in  a  time  of  great  national  peril,  when  our  heritage  of  free  government  was 
in  danger.  An  armed  rebellion  against  the  national  authority,  of  greater 
proportions  than  history  affords  an  example  of,  was  raging ;  and  the  public 
safety  required  that  the  privilege  of  the  writ  of  habeas  corpus  should  be  sus 
pended.  The  President  had  practically  suspended  it,  and  detained  suspect 
ed  persons  in  custody  without  trial ;  but  his  authority  to  do  this  was  ques 
tioned  ;  it  was  claimed  that  Congress  alone  could  exercise  this  power,  and  that 
the  legislature,  and  not  the  President,  should  judge  of  the  political  consid 
erations  on  which  the  right  to  suspend  it  rested.  The  privilege  of  this  great 
writ  had  never  before  been  withheld  from  the  citizen  ;  and  as  the  exigence 
of  the  times  demanded  immediate  action,  it  was  of  the  highest  importance 
that  the  lawfulness  of  the  suspension  should  be  fully  established.  It  was 


APPENDIX.  541 


under  these  circumstances,  which  were  such  as  to  arrest  the  attention  of  the 
country,  that  this  law  was  passed.  The  President  was  authorized  by  it  to 
suspend  the  privilege  of  the  writ  of  habeas  corpus,  whenever,  in  his  judg 
ment,  the  public  safety  required  ;  and  he  did,  by  proclamation,  bearing  date 
the  15th  of  September,  1863,  reciting,  among  other  things,  the  authority  of 
this  statute,  suspend  it.  The  suspension  of  the  writ  does  not  authorize  the 
arrest  of  any  one,  but  simply  denies  to  one  arrested  the  privilege  of  this  writ 
in  order  to  obtain  his  liberty. 

It  is  proper,  therefore,  to  inquire  under  what  circumstances  the  courts 
could  rightfully  refuse  to  grant  this  writ,  and  when  the  citizen  was  at  liber 
ty  to  invoke  its  aid. 

The  second  and  third  sections  of  the  law  are  explicit  on  these  points.  The 
language  used  is  plain  and  direct,  and  the  meaning  of  the  Congress  cannot 
be  mistaken.  The  public  safety  demanded,  if  the  President  thought  proper 
to  arrest  a  suspected  person,  that  he  should  not  be  required  to  give  the  cause 
of  his  detention  on  return  to  a  writ  of  habeas  corpus.  But  it  was  not  con 
templated  that  such  person  should  be  detained  in  custody  beyond  a  certain 
fixed  period,  unless  certain  judicial  proceedings,  known  to  the  common  law, 
were  commenced  against  him.  The  Secretaries  of  State  and  War  were  direct 
ed  to  furnish  to  the  judges  of  the  courts  of  the  United  States  a  list  of  the 
names  of  all  parties,  not  prisoners  of  war,  resident  in  their  respective  juisdic- 
tions,  who  then  were  or  afterwards  should  be  held  in  custody  by  the  author 
ity  of  the  President,  and  who  were  citizens  of  States  in  which  the  adminis 
tration  of  the  laws  in  the  Federal  tribunals  was  unimpaired.  After  the  list 
was  furnished,  if  a  grand  jury  of  the  district  convened  and  adjourned,  and 
did  not  indict  or  present  one  of  the  persons  thus  named,  he  was  entitled  to 
his  discharge  ;  and  it  was  the  duty  of  the  judge  of  the  court  to  order  him 
brought  before  him  to  be  discharged,  if  he  desired  it.  The  refusal  or  omis 
sion  to  furnish  the  list  could  not  operate  to  the  injury  of  any  one  who  was 
not  indicted  or  presented  by  the  grand  jury  ;  for,  if  twenty  days  had  elapsed 
from  the  time  of  his  arrest  and  the  termination  of  the  session  of  the  grand 
jury,  he  was  equally  entitled  to  his  discharge  as  if  the  list  were  furnished ; 
and  any  credible  person,  on  petition  verified  by  affidavit,  could  obtain  the 
judge's  order  for  that  purpose. 

Milligan,  in  his  application  to  be  released  from  imprisonment,  averred 
the  existence  of  every  fact  necessary,  under  the  terms  of  this  law,  to  give 
the  Circuit  Court  of  Indiana  jurisdiction.  If  he  was  detained  in  custody  by 
the  order  of  the  President,  otherwise  than  as  a  prisoner  of  war  ;  if  he  was  a 
citizen  of  Indiana,  and  had  never  been  in  the  military  or  naval  service,  and 
the  grand  jury  of  the  district  had  met,  after  he  had  been  arrested,  for  a 
period  of  twenty  days,  and  adjourned  without  taking  any  proceedings 
against  him,  then  the  court  had  the  right  to  entertain  his  petition  and  de 
termine  the  lawfulness  of  his  imprisonment.  Because  the  word  "  court  "  is 
not  found  in  the  body  of  the  second  section,  it  was  argued  at  the  bar,  that 
the  application  should  have  been  made  to  a  judge  of  the  court,  and  not  to 
the  court  itself ;  but  this  is  not  so,  for  power  is  expressly  conferred,  in  the 
last  proviso  of  the  section,  on  the  court  equally  with  a  judge  of  it,  to  dis 
charge  from  imprisonment.  It  was  the  manifest  design  of  Congress  to 
secure  a  certain  remedy  by  which  any  one,  deprived  of  liberty,  could  obtain 
it,  if  there  was  a  judicial  failure  to  find  cause  of  offence  against  him.  Courts 
are  not  always  in  session,  and  can  adjourn  on  the  discharge  of  the  grand 
jury,  and  before  those  who  are  in  confinement  could  take  proper  steps  to 
procure  their  liberation.  To  provide  for  this  contingency,  authority  was 
given  to  the  judges,  out  of  court,  to  grant  relief  to  any  party  who  could 
show  that,  under  the  law,  he  should  be  no  longer  restrained  of  his  liberty. 


542  APPENDIX. 

It  was  insisted  that  Milligan's  case  was  defective,  because  it  did  not  state 
that  the  list  was  furnished  to  the  judges;  and,  therefore,  it  was  impossible 
to  say  under  which  section  of  the  act  it  was  presented. 

It  is  not  easy  to  see  how  this  omission  could  affect  the  question  of  juris 
diction.  Milligan  could  not  know  that  the  list  was  furnished,  unless  the 
judges  volunteered  to  tell  him ;  for  the  law  did  not  require  that  any  record 
should  be  made  of  it,  or  anybody  but  the  judges  informed  of  it.  Why  aver 
the  fact,  when  the  truth  of  the  matter  was  apparent  to  the  court  without  an 
averment  ?  How  can  Milligan  be  harmed  by  the  absence  of  the  averment, 
when  he  states  that  he  was  under  arrest  for  more  than  sixty  days  before  the 
court  and  grand  jury,  which  should  have  considered  his  case,  met  at  Indian 
apolis  ?  It  is  apparent,  therefore,  that  under  the  Habeas  Corpus  Act  of  1863 
the  Circuit  Court  of  Indiana  had  complete  jurisdiction  to  adjudicate  upon 
this  case,  and  if  the  judges  could  not  agree  on  questions  vital  to  the  prog 
ress  of  the  cause,  they  had  the  authority  (as  we  have  shown  in  a  previous 
part  of  this  opinion),  and  it  was  their  duty,  to  certify  those  questions  of  dis 
agreement  to  this  court  for  final  decision.  It  was  argued  that  a  final  decis 
ion  on  the  questions  presented  ought  not  to  be  made,  because  the  parties 
who  were  directly  concerned  in  the  arrest  and  detention  of  Milligan  were 
not  before  the  court ;  and  their  rights  might  be  prejudiced  by  the  answer 
which  should  be  given  to  those  questions.  But  this  court  cannot  know 
what  return  will  be  made  to  the  writ  of  habeas  corpus  when  issued  ;  and  it 
is  very  clear  that  no  one  is  concluded  upon  any  question  that  may  be 
raised  to  that  return.  In  the  sense  of  the  law  of  1802,  which  authorized 
a  certificate  of  division,  a  final  decision  means  final  upon  the  points  certified ; 
final  upon  the  court  below,  so  that  it  is  estopped  from  any  adverse  rul 
ing  in  all  the  subsequent  proceedings  of  the  cause. 

But  it  is  said  that  this  case  is  ended,  as  the  presumption  is,  that  Mil 
ligan  was  hanged  in  pursuance  of  the  order  of  the  President. 

Although  we  have  no  judicial  information  on  the  subject,  yet  the  infer 
ence  is  that  he  is  alive  ;  for  otherwise  learned  counsel  would  not  appear 
for  him  and  urge  this  court  to  decide  his  case.  It  can  never  be,  in  this 
country  of  written  Constitution  and  laws,  with  a  judicial  department  to 
interpret  them,  that  any  chief  magistrate  would  be  so  far  forgetful  of  his 
duty,  as  to  order  the  execution  of  a  man  who  denied  the  jurisdiction  that 
tried  and  convicted  him,  after  his  case  was  before  Federal  judges  with 
power  to  decide  it,  who,  being  unable  to  agree  on  the  grave  questions  in 
volved,  had,  according  to  known  law,  sent  it  to  the  Supreme  Court  of  the 
United  States  for  decision.  But  even  the  suggestion  is  injurious  to  the 
Executive,  and  we  dismiss  it  from  further  consideration.  There  is,  there 
fore,  nothing  to  hinder  this  court  from  an  investigation  of  the  merits  of  this 
controversy. 

The  controlling  question  in  the  case  is  this  :  Upon  the  facts  stated  in 
Milligan's  petition,  and  the  exhibits  filed,  had  the  military  commission 
mentioned  in  it  jurisdiction,  legally,  to  try  and  sentence  him  ?  Milligan, 
not  a  resident  of  one  of  the  rebellious  States,  or  a  prisoner  of  war,  but  a 
citizen  of  Indiana  for  twenty  years  past,  and  never  in  the  military  or  naval 
service,  is,  while  at  his  home,  arrested  by  the  military  power  of  the  United 
States,  imprisoned,  and,  on  certain  criminal  charges  preferred  against  him, 
tried,  convicted,  and  sentenced  to  be  hanged  by  a  military  commission,  or 
ganized  under  the  direction  of  the  military  commander  of  the  military  dis 
trict  of  Indiana.  Had  this  tribunal  the  legal  power  and  authority  to  try 
and  punish  this  man  ? 

No  graver  question  was  ever  considered  by  this  court,  nor  one  which 
more  nearly  concerns  the  rights  of  the  whole  people  ;  for  it  is  the  birth- 


APPENDIX.  543 

right  of  every  American  citizen,  when  charged  with  crime,  to  be  tried  and 
punished  according  to  law.  The  power  of  punishment  is  alone  through  the 
means  which  the  laws  have  provided  for  that  purpose,  and  if  they  are  inef 
fectual,  there  is  an  immunity  from  punishmeut,  no  matter  how  great  an 
offender  the  individual  may  be,  or  how  much  his  crimes  may  have  shocked 
the  sense  of  justice  of  the  country,  or  endangered  its  safety.  By  the  pro 
tection  of  the  law  human  rights  are  secured  ;  withdraw  that  protection  and 
they  are  at  the  mercy  of  wicked  rulers,  or  the  clamor  of  an  excited  people. 
If  there  was  law  to  justify  this  military  trial,  it  is  not  our  province  to  inter 
fere  :  if  there  was  not,  it  is  our  duty  to  declare  the  nullity  of  the  whole  pro 
ceedings.  The  decision  of  this  question  does  not  depend  on  argument  or 
judicial  precedents,  numerous  and  highly  illustrative  as  they  are.  These 
precedents  inform  us  of  the  extent  of  the  struggle  to  preserve  liberty  and  to 
relieve  those  in  civil  life  from  military  trials.  The  founders  of  our  govern 
ment  were  familiar  with  the  history  of  that  struggle,  and  secured  in  a 
written  Constitution  every  right  which  the  people  had  wrested  from  power 
during  a  contest  of  ages.  By  that  Constitution  and  the  laws  authorized  by 
it  this  question  must  be  determined.  The  provisions  of  that  instrument 
on  the  administration  of  criminal  justice  are  too  plain  and  direct  to  leave 
room  for  misconstruction  or  doubt  of  their  true  meaning.  Those  applicable 
to  this  case  are  found  in  that  clause  of  the  original  Constitution  which  says, 
that  "  the  trial  of  all  crimes,  except  in  case  of  impeachment,  shall  be  by 
jury  ;  "  and  in  the  fourth,  fifth,  and  sixth  articles  of  the  amendments.  The 
fourth  proclaims  the  right  to  be  secure  in  person  and  effects  against  unrea 
sonable  search  and  seizure,  and  directs  that  a  judicial  warrant  shall  not 
issue  "  without  proof  of  probable  cause  supported  by  oath  or  affirmation." 
The  fifth  declares  that  "  no  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  presentment  by  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  militia,  when  in  actual 
service  in  time  of  war  or  public  danger,  nor  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law."  And  the  sixth  guarantees  the  right 
of  trial  by  jury,  in  such  manner  and  with  such  regulations  that,  with  upright 
judges,  impartial  juries,  and  an  able  bar,  the  innocent  will  be  saved  and  the 
guilty  punished.  It  is  in  these  words :  "  In  all  criminal  prosecutions  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law,  and  to  be  in 
formed  of  the  nature  and  cause  of  the  accusation,  to  be  confronted  with  the 
witnesses  against  him,  to  have  compulsory  process  for  obtaining  witnesses 
in  his  favor,  and  to  have  the  assistance  of  counsel  for  his  defence."  These 
securities  for  personal  liberty,  thus  embodied,  were  such  as  wisdom  and 
experience  had  demonstrated  to  be  necessary  for  the  protection  of  those 
accused  of  crime.  And  so  strong  was  the  sense  of  the  country  of  their 
importance,  and  so  jealous  were  the  people  that  these  rights,  highly  prized, 
might  be  denied  them  by  implication,  that  when  the  original  Constitution 
was  proposed  for  adoption  it  encountered  severe  opposition,  and  but  for  the 
belief  that  it  would  be  so  amended  as  to  embrace  them,  it  would  never 
have  been  ratified. 

Time  has  proven  the  discernment  of  our  ancestors ;  for  even  these  pro 
visions,  expressed  in  such  plain  English  words  that  it  would  seem  the 
ingenuity  of  man  could  not  evade  them,  are  now,  after  the  lapse  of  more 
than  seventy  years,  sought  to  be  avoided.  Those  great  and  good  men  fore 
saw  that  troublous  times  would  arise,  when  rulers  and  people  would  become 
restive  under  restraint,  and  seek  by  sharp  and  decisive  measures  to  accom 
plish  ends  deemed  just  and  proper  ;  and  that  the  principles  of  constitu- 


544  APPENDIX. 

tional  liberty  would  be  in  peril,  unless  established  by  irrepealable  law.  The 
history  of  the  world  had  taught  them  that  what  was  done  in  the  past  might 
be  attempted  in  the  future.  The  Constitution  of  the  United  States  is  a  law 
for  rulers  and  people,  equally  in  war  and  in  peace,  and  covers  with  the 
shield  of  its  protection  all  classes  of  men,  at  all  times,  and  under  all  circum 
stances.  No  doctrine,  involving  more  pernicious  consequences,  was  ever 
invented  by  the  wit  of  man,  than  that  any  of  its  provisions  can  be  suspend 
ed  during  any  of  the  great  exigencies  of  government.  Such  a  doctrine 
leads  directly  to  anarchy  or  despotism,  but  the  theory  of  necessity  on  which 
it  is  based  is  false  ;  for  the  government,  within  the  Constitution,  has  all  the 
powers  granted  to  it  which  are  necessary  to  preserve  its  existence  ;  as  has 
been  happily  proved  by  the  result  of  the  great  effort  to  throw  off  its  just 
authority. 

Have  any  of  the  rights  guaranteed  by  the  Constitution  been  violated  in 
the  case  of  Milligan  ?  and  if  so,  what  are  they  ? 

Every  trial  involves  the  exercise  of  judicial  power;  and  from  what  source 
did  the  military  commission  that  tried  him  derive  their  authority  ?  Cer 
tainly  no  part  of  the  judicial  power  of  the  country  was  conferred  on  them ; 
because  the  Constitution  expressly  vests  it  "  in  one  Supreme  Court  and  such 
inferior  courts  as  the  Congress  may  from  time  to  time  ordain  and  estab 
lish  ; "  and  it  is  not  pretended  that  the  commission  was  a  court  ordained  and 
established  by  Congress.  They  cannot  justify  on  the  mandate  of  the  Presi 
dent  ;  because  he  is  controlled  by  law,  and  has  his  appropriate  sphere  of 
duty,  which  is  to  execute,  not  to  make,  the  laws  ;  and  there  is  "  no  unwrit 
ten  criminal  code  to  which  resort  can  be  had  as  a  source  of  jurisdiction." 

But  it  is  said  that  the  jurisdiction  is  complete  under  the  "  laws  and  usages 
of  war." 

It  can  serve  no  useful  purpose  to  inquire  what  those  laws  and  usages  are, 
whence  they  originated,  where  found,  and  on  whom  they  operate  ;  they  can 
never  be  applied  to  citizens  in  States  which  have  upheld  the  authority  of 
the  government,  and  where  the  courts  are  open  and  their  process  unob 
structed.  This  court  has  judicial  knowledge  that  in  Indiana  the  Federal 
authority  was  always  unopposed,  and  its  courts  always  open  to  hear 
criminal  accusations  and  redress  grievances ;  and  no  usage  of  war  could 
sanction  a  military  trial  there,  for  any  offence  whatever,  of  a  citizen  in 
civil  life,  in  no  wise  connected  with  the  military  service.  Congress  could 
grant  no  such  power ;  and  to  the  honor  of  our  national  legislature  be  it 
said,  it  has  never  been  provoked  by  the  state  of  the  country  even  to  at 
tempt  its  exercise.  One  of  the  plainest  constitutional  provisions  was, 
therefore,  infringed  when  Milligan  was  tried  by  a  court  not  ordained  and 
established  by  Congress,  and  not  composed  of  judges  appointed  during 
good  behavior. 

Why  was  he  not  delivered  to  the  Circuit  Court  of  Indiana,  to  be  pro 
ceeded  against  according  to  law  ?  No  reason  of  necessity  could  be  urged 
against  it ;  because  Congress  had  declared  penalties  against  the  offences 
charged,  provided  for  their  pnnishment,  and  directed  that  court  to  hear 
and  determine  them.  And  soon  after  this  military  tribunal  was  ended, 
the  Circuit  Court  met,  peacefully  transacted  its  business,  and  adjourned. 
It  needed  no  bayonets  to  protect  it,  and  required  no  military  aid  to  execute 
its  judgments.  It  was  held  in  a  State  eminently  distinguished  for  pat 
riotism,  by  judges  commissioned  during  the  rebellion,  who  were  provided 
with  juries  upright,  intelligent,  and  selected  by  a  marshal  appointed  by 
the  President.  The  government  had  no  right  to  conclude  that  Milligan,  if 
guilty,  would  not  receive  in  that  court  merited  punishment ;  for  its  records 
disclose  that  it  was  constantly  engaged  in  the  trial  of  similar  offences,  and 


APPENDIX.  545 

was  never  interrupted  in  its  administration  of  criminal  justice.  If  it  was 
dangerous,  in  the  distracted  condition  of  affairs,  to  leave  Milligan  unre 
strained  of  his  liberty,  because  he  "conspired  against  the  government, 
afforded  aid  and  comfort  to  rebels,  and  incited  the  people  to  insurrection," 
the  law  said,  Arrest  him,  confine  him  closely,  render  him  powerless  to  do 
further  mischief,  and  then  present  his  case  to  the  grand  jury  of  the  dis 
trict,  with  proofs  of  his  guilt,  and,  if  indicted,  try  him  according  to  the 
course  of  the  common  law.  If  this  had  been  done,  the  Constitution  would 
have  been  vindicated,  the  law  of  1863  enforced,  and  the  securities  for  per 
sonal  liberty  preserved  and  defended. 

Another  guarantee  of  freedom  was  broken  when  Milligan  was  denied  a 
trial  by  jury.  The  great  minds  of  the  country  have  differed  on  the  correct 
interpretation  to  be  given  to  various  provisions  of  the  Federal  Constitution ; 
and  judicial  decision  has  been  often  invoked  to  settle  their  true  meaning; 
but  until  recently  no  one  ever  doubted  that  the  right  of  trial  by  jury  was 
fortified  in  the  organic  law  against  the  power  of  attack.  It  is  now  assailed ; 
but  if  ideas  can  be  expressed  in  words,  and  language  has  any  meaning,  this 
right  —  one  of  the  most  valuable  in  a  free  country  —  is  preserved  to  every 
one  accused  of  crime,  who  is  not  attached  to  the  army  or  navy,  or  militia 
in  actual  service.  The  sixth  amendment  affirms  that  "  in  all  criminal  pros 
ecutions  the  accused  shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an 
impartial  jury "  —  language  broad  enough  to  embrace  all  persons  and 
cases  ;  but  the  fifth,  recognizing  the  necessity  of  an  indictment  or  present 
ment  before  any  one  can  be  held  to  answer  for  high  crimes,  "  excepts  cases 
arising  in  ihs  land  or  naval  forces,  or  in  the  militia  when  in  actual  service, 
in  time  of  war  or  public  danger ; "  and  the  framers  of  the  Constitution 
doubtless  meant  to  limit  the  right  of  trial  by  jury,  in  the  sixth  amendment, 
to  those  persons  who  were  subject  to  indictment  or  presentment  in  the 
fifth. 

The  discipline  necessary  to  the  efficiency  of  the  army  and  navy  required 
other  and  swifter  modes  of  trial  than  are  furnished  by  the  common  law 
courts ;  and  in  pursuance  of  the  power  conferred  by  the  Constitution,  Con 
gress  has  declared  the  kinds  of  trial,  and  the  manner  in  which  they  shall 
be  ^conducted,  for  offences  committed  while  the  party  is  in  the  military  or 
naval  service.  Every  one  connected  with  these  branches  of  the  public  ser 
vice  is  amenable  to  the  jurisdiction  which  Congress  has  created  for  their 
government,  and  while  thus  serving,  surrenders  his  right  to  be  tried  by  the 
civil  courts.  All  other  persons,  citizens  of  States  where  the  courts  are 
open,  if  charged  with  crime,  are  guaranteed  the  inestimable  privilege  of  trial 
by  jury.  This  privilege  is  a  vital  principle,  underlying  the  whole  adminis 
tration  of  criminal  justice;  it  is  not  held  by  sufferance,  and  cannot  be  frit 
tered  away  on  any  plea  of  state  or  political  necessity.  When  peace  prevails, 
and  the  authority  of  the  government  is  undisputed,  there  is  no  difficulty  of 
preserving  the  safeguards  of  liberty ;  for  the  ordinary  modes  of  trial  are 
never  neglected,  and  no  one  wishes  it  otherwise  ;  but  if  society  is  disturbed 
by  civil  commotion  —  if  the  passions  of  men  are  arc-used  and  the  restraints 
of  law  weakened,  if  not  disregarded  —  these  safeguards  need,  and  should 
receive,  the  watchful  care  of  those  intrusted  with  the  guardianship  of  the 
Constitution  and  laws.  In  no  other  way  can  we  transmit  to  posterity  un 
impaired  the  blessings  of  liberty,  consecrated  by  the  sacrifices  of  the  revo 
lution. 

It  is  claimed  that  martial  law  covers  with  its  broad  mantle  the  proceedings 

of  this  military  commission.     The  proposition  is  this  :  that  in  a  time  of  war 

the  commander  of  an  armed  force  (if  in  his  opinion  the  exigencies  of  the 

country  demand  it,  and. of  which  he  is  to  judge)  has  the  power,  within  the 

69 


546  APPENDIX. 


lines  of  his  military  district,  to  suspend  all  civil  rights  and  their  remedies, 
and  subject  citizens  as  well  as  soldiers  to  the  rule  of  his  will ;  and  in  the 
exercise  of  his  lawful  authority  cannot  be  restrained  except  by  his  superior 
officer  or  the  President  of  the  United  States. 

If  this  position  is  sound  to  the  extent  claimed,  then,  when  war  exists, 
foreign  or  domestic,  and  the  country  is  subdivided  into  military  depart 
ments  for  mere  convenience,  the  commander  of  one  of  them  can,  if  he 
chooses,  within  his  limits,  on  the  plea  of  necessity,  with  the  approval  of  the 
Executive,  substitute  military  force  for  and  to  the  exclusion  of  the  laws, 
and  punish  all  persons,  as  he  thinks  right  and  proper,  without  fixed  or  cer 
tain  rules. 

The  statement  of  this  proposition  shows  its  importance ;  for,  if  true, 
republican  government  is  a  failure,  and  there  is  an  end  of  liberty  regulated 
by  law.  Martial  law,  established  on  such  a  basis,  destroys  every  guarantee 
of  the  Constitution,  and  effectually  renders  the  "  military  independent  of 
and  superior  to  the  civil  power  "  —  the  attempPto  do  which  by  the  King  of 
Great  Britain  was  deemed  by  our  fathers  such  an  offence,  that  they  assigned 
it  to  the  world  as  one  of  the  causes  which  impelled  them  to  declare  their 
independence.  Civil  liberty  and  this  kind  of  martial  law  cannot  endure 
together ;  the  antagonism  is  irreconcilable,  and  in  the  conflict  one  or  the 
other  must  perish. 

This  nation,  as  experience  has  proved,  cannot  always  remain  at  peace, 
and  has  no  right  to  expect  that  it  will  always  have  wise  and  humane  rulers, 
sincerely  attached  to  the  principles  of  the  Constitution.  Wicked  men,  am 
bitious  of  power,  with  hatred  of  liberty  and  contempt  of  law,  may  fill  the 
place  once  occupied  by  Washington  and  Lincoln  ;  and  if  this  right  is  con 
ceded,  and  the  calamities  of  war  again  befall  us,  the  dangers  to  human 
liberty  are  frightful  to  contemplate.  If  our  fathers  had  failed  to  provide  for 
just  such  a  contingency,  they  would  have  been  false  to  the  trust  reposed 
in  them.  They  knew  —  the  history  of  the  world  told  them  —  the  nation 
they  were  founding,  be  its  existence  short  or  long,  would  be  involved  in 
war;  how  often,  or  how  long  continued,  human  foresight  could  not  tell; 
and  that  unlimited  power,  wherever  lodged  at  such  a  time,  was  especially 
hazardous  to  freemen.  For  this  and  other  equally  weighty  reasons  they 
secured  the  inheritance  they  had  fought  to  maintain,  by  incorporating  in  a 
written  Constitution  the  safeguards  which  time  had  proved  were  essential  to 
its  preservation.  Not  one  of  these  safeguards  can  the  President,  or  Con 
gress,  or  the  Judiciary  disturb,  except  the  one  concerning  the  writ  of  habeas 
corpus. 

It  is  essential  to  the  safety  of  every  government,  that  in  a  great  crisis 
like  the  one  we  have  just  passed  through,  there  should  be  a  power  some 
where  of  suspending  the  writ  of  habeas  corpus.  In  every  war  there  are 
men,  of  previously  good  character,  wicked  enough  to  counsel  their  fellow- 
citizens  to  resist  the  measures  deemed  necessary  by  a  good  government  to 
sustain  its  just  authority  and  overthrow  its  enemies ;  and  their  influence 
may  lead  to  dangerous  combinations.  In  the  emergency  of  the  times,  an 
immediate  public  investigation  according  to  law  may  not  be  possible ;  and 
yet  the  peril  to  the  country  may  be  too  imminent  to  suffer  such  persons  to 
go  at  large.  Unquestionably  there  is  then  an  exigency  which  demands  that 
the  government,  if  it  should  see  fit,  in  the  exercise  of  a  proper  discretion,  to 
make  arrests,  should  not  be  required  to  produce  the  persons  arrested  in 
answer  to  a  writ  of  habeas  corpus.  The  Constitution  goes  no  farther.  It 
does  not  say,  after  a  writ  of  habeas  corpus  is  denied  a  citizen,  that  he  shall 
be  tried  otherwise  than  by  the  course  of  the  common  law  ;  if  it  had  intended 
this  result,  it  was  easy  by  the  use  of  direct  words  to  have  accomplished  it. 


APPENDIX.  547 

The  illustrious  men  who  framed  that  instrument  were  guarding  the  founda 
tions  of  civil  liberty  against  the  abuses  of  unlimited  power  ;  they  were  full 
of  wisdom,  and  the  lessons  of  history  informed  them  that  a  trial  by  an  estab 
lished  court,  assisted  by  an  impartial  jury,  was  the  only  sure  way  of  protect 
ing  the  citizen  against  oppression  and  wrong.  Knowing  this,  they  limited 
the  suspension  to  one  great  right,  and  left  the  rest  to  remain  forever  invio 
lable.  But  it  is  insisted  that  the  safety  of  the  country  in  time  of  war 
demands  that  this  broad  claim  for  martial  law  shall  be  sustained.  If  this 
were  true,  it  could  be  well  said  that  a  country  preserved  at  the  sacrifice  of 
all  the  cardinal  principles  of  liberty  is  not  worth  the  cost  of  preservation. 
Happily,  it  is  not  so. 

It  will  be  borne  in  mind  that  this  is  not  a  question  of  the  power  to  pro 
claim  martial  law,  when  war  exists  in  a  community  and  the  courts  and  civil 
authorities  are  overthrown.  Nor  is  it  a  question  what  rule  a  military  com 
mander,  at  the  head  of  his  army,  can  impose  on  States  in  rebellion  to 
cripple  their  resources  and  quell  the  insurrection.  The  jurisdiction  claimed 
is  much  more  extensive.  The  necessities  of  the  service,  during  the  late 
rebellion,  required  that  the  loyal  States  should  be  placed  within  the  limits 
of  certain  military  districts,  and  commanders  appointed  in  them  ;  and  it  is 
urged  that  this,  in  a  military  sense,  constituted  them  the  theatre  of  military 
operations  ;  and  as  in  this  case  Indiana  had  been,  and  was  again  threatened 
with  invasion  by  the  enemy,  the  occasion  was  furnished  to  establish  martial 
law.  The  conclusion  does  not  follow7  from  the  premises.  If  armies  were  col 
lected  in  Indiana,  they  were  to  be  employed  in  another  locality,  where  the 
laws  were  obstructed  and  the  national  authority  disputed.  On  her  soil  there 
was  no  hostile  foot ;  if  once  invaded,  that  invasion  was  at  an  end,  and  with 
it  all  pretext  for  martial  law.  Martial  law  cannot  arise  from  a  threatened 
invasion.  The  necessity  must  be  actual  and  present ;  the  invasion  real, 
such  as  effectually  closes  the  courts  and  deposes  the  civil  administration. 

It  is  difficult  to  see  how  the  safety  of  the  country  required  martial  law  in 
Indiana.  If  any  of  her  citizens  were  plotting  treason,  the  power  of  arrest 
could  secure  them,  until  the  government  was  prepared  for  their  trial,  when 
the  courts  were  open  and  ready  to  try  them.  It  was  as  easy  to  protect 
witnesses  before  a  civil  as  a  military  tribunal ;  and  as  there  could  be  no 
wish  to  convict,  except  on  sufficient  legal  evidence,  surely  an  ordained  and 
established  court  was  better  able  to  judge  of  this  than  a  military  tribunal 
composed  of  gentlemen  not  trained  to  the  profession  of  the  law. 

It  follows,  from  what  has  been  said  on  this  subject,  that  there  are  occasions 
when  martial  rule  can  be  properly  applied.  If,  in  foreign  invasion  or  civil 
war,  the  courts  are  actually  closed,  and  it  is  impossible  to  administer  crimi 
nal  justice  according  to  law,  then,  on  the  theatre  of  active  military  opera 
tions,  where  war  really  prevails,  there  is  a  necessity  to  furnish  a  substi 
tute  for  the  civil  authority  thus  overthrown,  to  preserve  the  safety  of  the 
army  and  society ;  and  as  no  power  is  left  but  the  military,  it  is  allowed  to 
govern  by  martial  rule  until  the  laws  can  have  their  'free  course.  As 
necessity  creates  the  rule,  so  it  limits  its  duration  ;  for,  if  this  government 
is  continued  after  the  courts  are  reinstated,  it  is  a  gross  usurpation  of  power. 
Martial  rule  can  never  exist  where  the  courts  are  open,  and  in  the  proper 
and  unobstructed  exercise  of  their  jurisdiction.  It  is  also  confined  to  the 
locality  of  actual  war.  Because,  during  the  late  rebellion,  it  could  have 
been  enforced  in  Virginia,  where  the  national  authority  was  overturned  and 
the  courts  driven  out,  it  does  not  follow  that  it  should  obtain  in  Indiana, 
where  that  authority  was  never  disputed,  and  justice  was  always  adminis 
tered.  And  so,  in  the  case  of  a  foreign  invasion,  martial  rule  may  oecome 
a  necessity  in  one  State,  when  in  another  it  would  be  "mere  lawless 
violence." 


548  APPENDIX. 


We  are  not  without  precedents  in  English  and  American  history  illustrat 
ing  our  views  of  this  question  ;  but  it  is  hardly  necessary  to  make  particu- 
larVeference  to  them. 

From  the  first  year  of  the  reign  of  Edward  the  Third,  when  the  Parlia 
ment  of  England  reversed  the  attainder  of  the  Earl  of  Lancaster,  because 
he  could  have  been  tried  by  the  courts  of  the  realm,  and  declared  "  that  in 
time  of  peace  no  man  ought  to  be  adjudged  to  death  for  treason  or  any 
other  offence  without  being  arraigned  and  held  to  answer,  and  that  regu 
larly  when  the  king's  courts  are  open  it  is  a  time  of  peace  in  judgment  of 
law,"  down  to  the  present  day,  martial  law,  as  claimed  in  this  case,  has 
been  condemned  by  all  respectable  English  jurists  as  contrary  to  the  funda 
mental  laws  of  the  land,  and  subversive  of  the  liberty  of  the  subject. 

During  the  present  century,  an  instructive  debate  on  this  question  oc 
curred  in  Parliament,  occasioned  by  the  trial  and  conviction  by  court  mar 
tial,  at  Demerara,  of  the  Kev.  John  Smith,  a  missionary  to  the  negroes,  on 
the  alleged  ground  of  aiding  and  abetting  a  formidable  rebellion  in  that 
colony.  Those  eminent  statesmen,  Lord  Brougham  and  Sir  James  Mackin 
tosh,  participated  in  that  debate,  and  denounced  the  trial  as  illegal,  because 
it  did  not  appear  that  the  courts  of  law  in  Demerara  could  not  try  offences, 
and  that  "  when  the  laws  can  act,  every  other  mode  of  punishing  supposed 
crimes  is  itself  an  enormous  crime." 

So  sensitive  were  our  revolutionary  fathers  on  this  subject,  although  Bos 
ton  was  almost  in  a  state  of  siege  when  General  Gage  issued  his  proclama 
tion  of  martial  law,  they  spoke  of  it  as  an  "  attempt  to  supersede  the  course 
of  the  common  law,  and  instead  thereof  to  publish  and  order  the  use  of 
martial  law."  The  Virginia  Assembly  also  denounced  a  similar  measure  on 
the  part  of  Governor  Dunmore,  "  as  an  assumed  power,  which  the  king 
himself  cannot  exercise,  because  it  annuls  the  law  of  the  land,  and  intro 
duces  the  most  execrable  of  all  systems,  martial  law." 

In  some  parts  of  the  country,  during  the  war  of  1812,  our  officers  made 
arbitrary  arrests,  and  by  military  tribunals  tried  citizens  who  were  not  in  the 
military  service.  These  arrests  and  trials,  when  brought  to  the  notice  of 
the  courts,  were  uniformly  condemned  as  illegal.  The  cases  of  Smith  v. 
Shaw  and  McConnell  v.  Hampdeii  (reported  in  12  Johnson  *),  are  illustra 
tions,  which  we  cite,  not  only  for  the  principles  which  they  determine,  but 
on  account  of  the  distinguished  jurists  concerned  in  the  decisions,  one  of 
whom  for  many  years  occupied  a  seat  on  this  bench. 

It  is  contended  that  Luther  v.  Borden,  decided  by  this  court,  is  an  au 
thority  for  the  claim  of  martial  law  advanced  in  this  case.  The  decision  is 
misapprehended.  That  case  grew  out  of  the  attempt  in  Rhode  Island  to 
supersede  the  old  colonial  government  by  a  revolutionary  proceeding. 
Rhode  Island,  until  that  period,  had  no  other  form  of  local  government 
than  the  charter  granted  by  King  Charles  II.,  in  1663  ;  and  as  that  limited 
the  right  of  suffrage,  and  "did  not  provide  for  its  own  amendment,  many 
citizens  became  dissatisfied,  because  the  legislature  would  not  afford  the 
relief  in  their  power ;  and  without  the  authority  of  law,  formed  a  new  and 
independent  constitution,  and  proceeded  to  assert  its  authority  by  force  of 
arms.  The  old  government  resisted  this  ;  and  as  the  rebellion  was  formi 
dable,  called  out  the  militia  to  subdue  it,  and  passed  an  act  declaring  mar 
tial  law.  Borden,  in  the  military  service  of  the  old  government,  broke 
open  the  house  of  Luther,  who  supported  the  new,  in  order  to  arrest  him. 
Luther  brought  suit  against  Borden  ;  and  the  question  was,  whether,  under 
the  constitution  and  laws  of  the  State,  Borden  was  justified.  This  court 

*  Payes  257  uud  234. 


APPENDIX.  549 


State  "  may  use  its  military  power  to  put  down  an  armed  in- 
)o   strong  to  be  controlled  'by  the  civil  authority ;  "  and,  if  the 


held  that  a 
surrection   too 

legislature  of  Rhode  Island  thought  the  peril  so  great  as  to  require  the  use 
of  its  military  forces  and  the  declaration  of  martial^  law,  there  was  no 
ground  on  which  this  court  could  question  its  authority  ;  and  as  Borden 
acted  under  military  orders  of  the  charter  government,  .which  had  been 
recognized  by  the  political  power  of  the  country,  and  was  upheld  by  the 
State  judiciary,  he  was  justified  in  breaking  into  and  entering  Luther's 
house.  This  is  the  extent  of  the  decision.  There  was  no  question  in  issue 
about  the  power  of  declaring  martial  law  under  the  Federal  Constitution, 
and  the  court  did  not  consider  it  necessary  even  to  inquire  "  to  what  extent 
nor  under  what  circumstances  that  power  may  be  exercised  by  a  State." 

We  do  not  deem  it  important  to  examine  further  the  adjudged  cases,  and 
shall,  therefore,  conclude  without  any  additional  reference  to  authorities. 

To  the  third  question,  then,  on  which  the  judges  below  were  opposed  in 
opinion,  an  answer  in  the  negative  must  be  returned. 

It  is  proper  to  say,  although  Milligan's  trial  and  conviction  by  a  mil 
itary  commission  was  illegal,  yet,  if  guilty  of  the  crimes  imputed  to  him, 
and  his  guilt  had  been  ascertained  by  an  established  court  ami  impartial 
jury,  he  deserved  severe  punishment.  Open  resistance  to  the  measures 
deemed  necessary  to  subdue  a  great  rebellion,  by  those  who  enjoy  the  pro 
tection  of  government,  and  have  not  the  excuse  even  of  prejudice  of  section 
to  plead  in  their  favor,  is  wicked  ;  but  that  resistance  becomes  an  enormous 
crime  when  it  assumes  the  form  of  a  secret  political  organization,  armed  to 
oppose  the,  laws,  and  seeks  by  stealthy  means  to  introduce  the  enemies  of 
the  country  into  peaceful  communities,  there  to  light  the  torch  of  civil  war, 
and  thus  overthrow  the  power  of  the  United  States.  Conspiracies  like 
these,  at  such  a  juncture,  are  extremely  perilous  ;  and  those  concerned  in 
them  are  dangerous  enemies  to  their  country,  and  should  receive  the  heaviest 
penalties  of  the  law,  as  an  example  to  deter  others  from  similar  criminal 
conduct.  It  is  said  the  severity  of  the  laws  caused  them  ;  but  Congress 
was  obliged  to  enact  severe  laws  to  meet  the  crisis ;  and  as  our  highest 
civil  duty  is  to  serve  our  country  when  in  danger,  the  late  war  has  proved 
that  rigorous  laws,  when  necessary,  will  be  cheerfully  obeyed  by  a  patriotic 
people,  struggling  to  preserve  the  rich  blessings  of  a  free  government. 

The  two  remaining  questions  in  this  case  must  be  answered  in  the  affirma 
tive.  The  suspension  of  the  privilege  of  the  writ  of  habeas  corpus  does 
not  suspend  the  writ  itself.  The  writ  issues  as  a  matter  of  course  ;  and  on 
the  return  made  to  it  the  court  decides  whether  the  party  applying  is  denied 
the  right  of  proceeding  any  farther  with  it. 

If  the  military  trial  of  Milligan  was  contrary  to  law,  then  he  was  entitled, 
on  the  facts  stated  in  his  petition,  to  be  discharged  from  custody  by  the 
terms  of  the  act  of  Congress  of  March  3,  1863.  The  provisions  of  this 
law  having  been  considered  in  a  previous  part  of  this  opinion,  we  will  not 
restate  the  views  there  presented.  Milligan  avers  he  was  a  citizen  of  In 
diana,  not  in  the  military  or  naval  service,  and  was  detained  in  close  con 
finement,  by  order  of  the  President,  from  the  oth  day  of  October,  1864, 
until  the  2d  day  of  January,  1865,  when  the  Circuit  Court  for  the  District 
of  Indiana,  with  a  grand  jury,  convened  in  session  at  Indianapolis ;  ami 
afterwards,  on  the  27th  day  of  the  same  month,  adjourned  without  finding 
an  indictment  or  presentment  against  him.  If  these  averments  were  true 
(and  their  truth  is  conceded  for  the  purposes  of  this  case),  the  court  was 
required  to  liberate  him  on  taking  certain  oaths  prescribed  by  the  law,  and 
entering  into  recognizance  for  his  good  behavior. 

But  it  is  insisted  that  Milligan  was  a  prisoner  of  war,  and,  therefore,  ex 


550  APPENDIX. 

eluded  from  the  privileges  of  the  statute.  It  is  not  easy  to  see  how  he  can 
be  treated  as  a  prisoner  of  war,  when  he  lived  in  Indiana  for  the  past  twen 
ty  years,  was  arrested  there,  and  had  not  been,  during  the  late  troubles,  a 
resident  of  any  of  the  States  in  rebellion.  If  in  Indiana  he  conspired  with 
bad  men  to  assist  the  enemy,  he  is  punishable  for  it  in  the  courts  of  Indi 
ana  ;  but,  when  £ried  for  the  offence,  he  cannot  plead  the  rights  of  war; 
for  he  was  not  engaged  in  legal  acts  of  hostility  against  the  government, 
and  only  such  persons,  when  captured,  are  prisoners  of  war.  If  he  cannot 
enjoy  the  immunities  attaching  to  the  character  of  a  prisoner  of  war,  how 
can  he  be  subject  to  their  pains  and  penalties  ? 

This  case,  as  well  as  the  kindred  cases  of  Bowles  and  Horsey,  were  dis 
posed  of  at  the  last  term,  and  the  proper  orders  were  entered  of  record. 
There  is,  therefore,  no  additional  entry  required. 

The  Chief  Justice  delivered  the  following  opinion  :  — 

Four  members  of  the  court,  concurring  with  their  brethren  in  the  order 
heretofore  made  in  this  cause,  but  unable  to  concur  in  some  important  par 
ticulars  with  the  opinion  which  has  just  been  read,  think  it  their  duty  to 
make  a  separate  statement  of  their  views  of  the  whole  case. 

We  do  not  doubt  that  the  Circuit  Court  for  the  District  of  Indiana  had 
jurisdiction  of  the  petition  of  Milligan  for  the  writ  of  habeas  corpus. 

Whether  this  court  has  jurisdiction  upon  the  certificate  of  division  ad 
mits  of  more  question.  The  construction  of  the  act  authorizing  such  cer 
tificates,  which  has  hitherto  prevailed  here,  denies  jurisdiction  in  cases 
where  the  certificate  brings  up  the  whole  cause  before  the  court.  But  none 
of  the  adjudicated  cases  are  exactly  in  point,  and  we  are  willing  to  resolve 
whatever' doubt  may  exist  in  favor  of  the  earliest  possible  answers  to  ques 
tions  involving  life  and  liberty.  We  agree,  therefore,  that  this  court  may 
properly  answer  questions  certified  in  such  a  case  as  that  before  us. 

The  crimes  with  which  Milligan  was  charged  were  of  the  gravest  charac 
ter,  and  the  petition  and  exhibits  in  the  record,  which  must  here  be  taken 
as  true,  admit  his  guilt.  But  whatever  his  desert  of  punishment  may  be, 
it  is  more  important  to  the  country  and  to  every  citizen  that  he  should  not 
be  punished  under  an  illegal  sentence,  sanctioned  by  this  court  of  last  re 
sort,  than  that  he  should  be  punished  at  all.  The  laws  which  protect  the 
liberties  of  the  whole  people  must  not  be  violated  or  set  aside  in  order  to 
.inflict,  even  upon  the  guilty,  unauthorized  though  merited  justice. 

The  trial  and  sentence  of  Milligan  were  by  military  commission  convened 
in  Indiana  during  the  fall  of  1864.  The  action  of  the  commission  had  been 
under  consideration  by  President  Lincoln  for  some  time,  when  he  himself 
became  the  victim  of  an  abhorred  conspiracy.  It  was  approved  by  his  suc 
cessor  in  May,  1865,  and  the  sentence  was  ordered  to  be  carried  into  execu 
tion.  The  proceedings,  therefore,  had  the  fullest  sanction  of  the  executive 
department  of  the  government. 

This  sanction  requires  the  most  respectful  and  the  most  careful  consider 
ation  of  this  court.  The  sentence  which  it  supports  must  not  be  set  aside 
except  upon  the  clearest  conviction  that  it  cannot  be  reconciled  with  the 
Constitution  and  the  constitutional  legislation  of  Congress. 

We  must  inquire,  then,  what  constitutional  or  statutory  provisions  have 
relation  to  this  military  proceeding. 

The  act  of  Congress  of  March  3,  1863,  comprises  all  the  legislation 
which  seems  to  require  consideration  in  this  connection.  The  constitution 
ality  of  this  act  has  not  been  questioned,  and  is  not  doubted. 

The  first  section  authorized  the  suspension,  during  the  rebellion,  of  the 
writ  of  habeas  corpus  throughout  the  United  States  by  the  President.  The 
two  next  sections  limited  this  authority  in  important  respects. 


APPENDIX.  551 


The  second  section  required  that  lists  of  all  persons,  being  citizens  of 
1  States  in  which  the  administration  of  the  laws  had  continued  unimpaired 
in  the  Federal  courts,  who  were  then  held  or  might  thereafter  be  held  as 
prisoners  of  the  United  States,  under  the  authority  of  the  President,  other 
wise  than  as  prisoners  of  war,  should  be  furnished  to  the  judges  of  the 
Circuit  and  District  Courts.  The  lists  transmitted  to  the  judges  were  to 
contain  the  names  of  all  persons,  residing  within  their  respective  jurisdic 
tions,  charged  with  violation  of  national  law.  And  it  was  required,  in  cases 
where  the  grand  jury  in  attendance  upon  any  of  these  courts  should  termi 
nate  its  session  without  proceeding  by  indictment  or  otherwise  against  any 
prisoner  named  in  the  list,  that  the  judge  of  the  court  should  forthwith 
make  an  order  that  such  prisoner  desiring  a  discharge,  should  be  brought 
before  him  or  the  court  to  be  discharged,  on  entering  into  recognizance,  if 
required,  to  keep  the  peace  and  for  good  behavior,  or  to  appear,  as  the 
court  might  direct,  to  be  further  dealt  with  according  to  law.  Every  officer 
of  the  United  States  having  custody  of  such  prisoners  was  required  to  obey 
and  execute  the  judge's  order,  under  penalty,  for  refusal  or  delay,  of  fine 
and  imprisonment. 

The  third  section  provided,  in  case  lists  of  persons  other  than  prisoners 
of  war  then  held  in  confinement,  or  thereafter  arrested,  should  not  be  fur 
nished  within  twenty  days  after  the  passage  of  the  act,  or,  in  cases  of  sub 
sequent  arrest  within  twenty  days  after  the  time  of  arrest,  that  any  citizen, 
after  the  termination  of  a  session  of  the  grand  jury  without  indictment 
or  presentment,  might,  by  petition  alleging  the  facts  and  verified  by  oath, 
obtain  the  judge's  order  of  discharge  in  favor  of  any  person  so  imprisoned, 
on  the  terms  and  conditions  prescribed  in  the  second  section. 

It  was  made  the  duty  of  the  District  Attorney  of  the  United  States  to 
attend  examinations  on  petitions  for  discharge. 

It  was  under  this  act  that  Milligan  petitioned  the  Circuit  Court  for  the 
District  of  Indiana  for  discharge  from  imprisonment. 

The  holding  of  the  Circuit  and  District  Courts  of  the  United  States  in 
Indiana  had  been  uninterrupted.  The  administration  of  the  laws  in  the 
Federal  courts  had  remained  unimpaired.  Milligan  was  imprisoned  under 
the  authority  of  the  President,  and  was  not  a  prisoner  of  war.  No  list  of 
prisoners  had  been  furnished  to  the  judges,  either  of  the  District  or  Circuit 
Courts,  as  required  by  the  law.  A  grand  jury  had  attended  the  Circuit 
Courts  of  the  Indiana  district,  while  Milligan "  was  there  imprisoned,  and 
had  closed  its  session  without  finding  any  indictment  or  presentment,  or 
otherwise  proceeding  against  the  prisoner. 

His  case  was  thus  brought  within  the  precise  letter  and  intent  of  the 
act  of  Congress,  unless  it  can  be  said  that  Milligan  was  not  imprisoned  by 
authority  of  the  President ;  and  nothing  of  this  sort  was  claimed  in  argu 
ment  on  the  part  of  the  government. 

It  is  clear  upon  this  statement  that  the  Circuit  Court  was  bound  to  hear 
Milligan's  petition  for  the  writ  of  habeas  corpus,  called  in  the  act  an  order 
to  bring  the  prisoner  before  the  judge  or  the  court,  and  to  issue  the  writ, 
or,  in  the  language  of  the  act,  to  make  the  order. 

The  first  question,  therefore,  —  Ought  the  writ  to  issue  ?  — must  be  an 
swered  in  the  affirmative. 

And  it  is  equally  clear  that  he  was  entitled  to  the  discharge  prayed  for. 

It  must  be  borne  in  mind  that  the  prayer  of  the  petition  was  not  for  an 
absolute  discharge,  but  to  be  delivered  from  military  custody  and  imprison 
ment,  and  if  found  probably  guilty  of  any  offence,  to  be  turned  over  to  the 
proper  tribunal  for  inquiry  and  punishment ;  or,  if  not  found  thus  probably 
guilty,  to  be  discharged  altogether. 


552  APPENDIX. 


And  the  express  terms  of  the  act  of  Congress  required  this  action  of  the 
court.  The  prisoner  must  be  discharged  on  giving  such  recognizance  as 
the  court  should  require,  not  only  for  good  behavior,  but  for  appearance,  as 
directed  by  the  court,  to  answer  and  be  further  dealt  with  according  to  law. 

The  first  section  of  the  act  authorized  the  suspension  of  the  writ  of  ha 
beas  corpus  generally  throughout  the  United  States.  The  second  and  third 
sections  limited  this  suspension,  in  certain  cases,  within  States  where  the 
administration  of  justice  by  the  Federal  courts  remained  unimpaired.  In 
these  cases  the  writ  was  still  to  issue,  and  under  it  the  prisoner  was  entitled 
to  his  discharge  by  a  circuit  or  district  judge  or  court,  unless  held  to  bail 
for  appearance  to  answer  charges.  No  other  judge  or  court  could  make  an 
order  of  discharge  under  the  writ.  Except  under  the  circumstances  pointed 
out  by  the  act,  neither  circuit  nor  district  judge  or  court  could  make  such 
an  order.  But  under  those  circumstances,  the  writ  must  be  issued,  and  the 
relief  from  imprisonment  directed  by  the  act  must  be  afforded.  The  com 
mands  of  the  act  were  positive,  and  left  no  discretion  to  court  or  judge. 

An  affirmative  answer  must,  therefore,  be  given  to  the  second  question, 
namely,  Ought  Milligan  to  be  discharged  according  to  the  prayer  of  the 
petition  ? 

That  the  third  question,  namely,  Had  the  military  commission  in  Indiana, 
under  the  facts  stated,  jurisdiction  to  try  and  sentence  Milligan?  must  be 
answered  negatively,  is  an  unavoidable  inference  from  affirmative  answers 
to  the  other  two. 

The  military  commission  could  not  have  jurisdiction  to  try  and  sentence 
Milligan,  if  he  could  not  be  detained  in  prison  under  his  original  arrest  or 
under  sentence,  after  the  close  of  a  session  of  the  grand  jury,  without  in 
dictment  or  other  proceeding  against  him. 

Indeed,  the  act  seems  to  have  been  framed  on  purpose  to  secure  the  trial 
of  all  offences  of  citizens  by  civil  tribunals,  in  States  where  these  tribunals 
were  not  interrupted  in  the  regular  exercise  of  their  functions. 

Under  it,  in  such  States,  the  privilege  of  the  writ  might  be  suspended. 
Any  person  regarded  as  dangerous  to  the  public  safety  might  be  arrested 
and  detained  until  after  the  session  of  a  grand  jury.  Until  after  such  session, 
no  person  arrested  could  have  the  benefit  of  the  writ;  and  even  then,  no 
such  person  could  be  discharged  except  on  such  terms,  as  to  future  appear 
ance,  as  the  court  might  impose.  These  provisions  obviously  contemplate 
no  other  trial  or  sentence  than  that  of  a  civil  court,  and  we  could  not  assert 
the  legality  of  a  trial  and  sentence  by  a  military  commission,  under  the  cir 
cumstances  specified  in  the  act  and  described  in  the  petition,  without  disre 
garding  the  plain  directions  of  Congress. 

We  agree,  therefore,  that  the  first  two  questions  certified  must  receive 
affirmative  answers,  and  the  last  a  negative.  We  do  not  doubt  that  the 
positive  provisions  of  the  act  of  Congress  require  such  answers.  We  do 
not  think  it  necessary  to  look  beyond  these  provisions.  In  them  we  find 
sufficient  and  controlling  reasons  for  our  conclusions. 

But  the  opinion  which  has  just  been  read  goes  farther,  and,  as  we  under 
stand  it,  asserts  not  only  that  the  military  commission  held  in  Indiana  was 
not  authorized  by  Congress,  but  that  it  was  not  in  the  power  of  Congress 
to  authorize  it ;  from  which  it  may  be  thought  to  follow,  that  Congress  has 
no  power  to  indemnify  the  officers  who  composed  the  commission  against 
liability  in  civil  courts  for  acting  as  members  of  it. 

We  cannot  agree  to  this. 

We  agree  in  the  proposition  that  no  department  of  the  government  of 
the  United  States  —  neither  President,  nor  Congress,  nor  the  Courts  — 
possesses  any  power  not  given  by  the  Constitution. 


APPENDIX.  553 

We  assent,  fully,  to  all  that  is  said,  in  the  opinion,  of  the  inestimable 
value  of  the  trial  by  jury,  and  of  the  other  constitutional  safeguards  of 
civil  liberty.  And  we  concur,  also,  in  what  is  said  of  the  writ  of  habeas 
corpus,  an-d  of  its  suspension,  with  two  reservations:  (1.)  That  in  our  judg 
ment,  when  the  writ  is  suspended,  the  executive  is  authorized  to  arrest  as 
well  as  to  detain  ;  and  (2.)  that  there  are  cases  in  which,  the  privilege  of 
the  writ  being  suspended,  trial  and  punishment  by  military  commission,  in 
States  where  civil  courts  are  open,  may  be  authorized  by  Congress,  as  well 
as  arrest  and  detention. 

We  think  that  Congress  had  power,  though  not  exercised,  to  authorize 
the  military  commission  which  was  held  in  Indiana. 

We  do  not  think  it  necessary  to  discuss  at  large  the  grounds  of  our  con 
clusions.  We  will  briefly  indicate  some  of  them. 

The  Constitution  itself  provides  for  military  government ^  as  well  as  for 
civil  government.  And  we  do  not  understand  it  to  be  claimed,  that  the 
civil  safeguards  of  the  Constitution  have  application  in  cases  within  the 
proper  sphere  of  the  former. 

What,  then,  is  that  proper  sphere  ?  Congress  has  power  to  raise  and  sup 
port  armies  ;  to  provide  and  maintain  a  navy  ;  to  make  rules  for  the  gov 
ernment  and  regulation  of  the  land  and  naval  forces,  and  to1  provide  for 
governing  such  part  of  the  militia  as  may  be  in  the  service  of  the  United 
States. 

It  is  not  denied  that  the  power  to  make  rules  for  the  government  of  the 
army  and  navy  is  a  power  to  provide  for  trial  and  punishment  by  military 
courts  without  a  jury.  It  has  been  so  understood  and  exercised  from  the 
adoption  of  the  Constitution  to  the  present  time. 

Nor,  in  our  judgment,  does  the  fifth,  or  any  other  amendment,  abridge 
that  power.  "  Cases  arising  in  the  land  and  naval  forces,  or  in  the  militia 
in  actual  service  in  time  of  war  or  public  danger,"  are  expressly  excepted 
from  the  fifth  amendment,  "  that  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless  on  a  presentment  or  indictment 
of  a  grand  jury,"  and  it  is  admitted  that  the  exception  applies  to  the  other 
amendments,  as  well  as  to  the  fifth. 

Now,  we  understand  this  exception  to  have  the  same  import  and  effect  as 
if  the  powers  of  Congress  in  relation  to  the  government  of  the  army  and 
navy  and  the  militia  had  been  recited  in  the  amendment,  and  cases  within 
those  powers  had  been  expressly  excepted  from  its  operation.  The  States, 
most  jealous  of  encroachments  upon  the  liberties  of  the  citizen,  when  pro 
posing  additional  safeguards  in  the  form  of  amendments,  excluded  spe 
cifically  from  their  effect  cases  arising  in  the  government  of  the  land  and 
naval  forces..  Thus  Massachusetts  proposed  that  "  no  person  shall  be  tried 
for  any  crime  by  which  he  would  incur  an  infamous  punishment  or  loss  of 
life,  until  he  be  first  indicted  by  a  grand  jury,  except  in  such  cases  as  may 
arise  in  the  government  and  regulation  of  the  land  forces."  Th«  exception 
in  similar  amendments,  proposed  by  New  York,  Maryland,  and  Virginia, 
was  in  the  same  or  equivalent  terms.  The  amendments  proposed  by  the 
States  were  considered  by  the  first  Congress,  and  such  as  were  approved 
in  substance  were  put  in  form,  and  proposed  by  that  body  to  the  States. 
Among  those  thus  proposed,  and  subsequently  ratified,  was  that  which  now 
stands  as  the  fifth  amendment  of  the  Constitution.  We  cannot  doubt  that 
this  amendment  was  intended  to  have  the  same  force  and  effect  as  the  amend 
ment  proposed  by  the  States.  We  cannot  agree  to  a  construction  which 
will  impose  on  the  exception  in  the  fifth  amendment  a  sense  other  than  that 
obviously  indicated  by  action  of  the  State  conventions. 

We  think,  therefore,  that  the  power  of  Congress,  in  the  government  of 

70 


554  APPENDIX. 

the  land  and  naval  forces  and  of  the  militia,  is  not  at  all  affected  by  the 
fifth  or  any  other  amendment.  It  is  not  necessary  to  attempt  any  precise 
definition  of  the  boundaries  of  this  power.  But  may  it  not  be  said  that 
government  includes  protection  and  defence,  as  well  as  the  regulation  of 
internal  administration  ?  And  is  it  impossible  to  imagine  cases  in  which 
citizens,  conspiring  or  attempting  the  destruction  or  great  injury  of  the 
national  forces,  may  be  subjected  by  Congress  to  military  trial  and  punish 
ment  in  the  just  exercise  of  this  undoubted  constitutional  power  ?  Con 
gress  is  but  the  agent  of  the  nation  ;  and  does  not  the  security  of  individu 
als  against  the  abuse  of  this,  as  of  every  other  power,  depend  on  the  intel 
ligence  and  virtue  of  the  people,  on  their  zeal  for  public  and  private  liberty, 
upon  official  responsibility  secured  by  law,  and  upon  the  frequency  of  elec 
tions  rather  than  upon  doubtful  constructions  of  legislative  powers  ? 

But  we  do  not  put  our  opinion,  that  Congress  might  authorize  such  a 
military  commission  as  was  held  in  Indiana,  upon  the  power  to  provide  for 
the  government  of  the  national  forces. 

Congress  has  the  power  not  only  to  raise,  and  support,  and  govern  armies, 
but  to  declare  war.  It  has,  therefore,  the  power  to  provide  by  law  for  car 
rying  on  war.  This  power  necessarily  extends  to  all  legislation  essential  to 
the  prosecution  of  war  with  vigor  and  success,  except  such  as  interferes 
with  the  command  of  the  forces  and  the  conduct  of  campaigns.  That 
power  and  duty  belong  to  the  President  as  commander-in-chief.  Both  these 
powers  are  derived  from  the  Constitution,  but  neither  is  defined  by  that  in 
strument.  Their  extent  must  be  determined  by  their  nature,  and  by  the 
principles  of  our  institutions. 

The  power  to  make  the  necessary  laws  is  in  Congress  ;  the  power  to  ex 
ecute  in  the  President.  Both  powers  imply  many  subordinate  and  auxiliary 
powers.  Each  includes  all  authorities  essential  to  its  due  exercise.  But 
neither  can  the  President,  in  war  more  than  in  peace,  intrude  upon  the 
proper  authority  of  Congress,  nor  Congress  upon  the  proper  authority  of 
the  President.  Both  are  servants  of  the  people,  whose  will  is  expressed  in 
the  fundamental  law.  Congress  cannot  direct  the  conduct  of  campaigns, 
nor  can  the  President,  or  any  commander  under  him,  without  the  sanction 
of  ^Congress,  institute  tribunals  for  the  trial  and  punishment  of  offences, 
either  of  soldiers  or  civilians,  unless  in  cases  of  a  controlling  necessity, 
wrhich  justifies  what  it  compels,  or  at  least  insures  acts  of  indemnity  from 
the  justice  of  the  legislature. 

We  by  no  means  assert  that  Congress  can  establish  and  apply  the  laws  of 
war  where  no  war  has  been  declared  or  exists. 

Where  peace  exists  the  laws  of  peace  must  prevail.  What  we  do  main 
tain  is,  that  when  the  nation  is  involved  in  war,  and  some  portions  of  the 
country  are  invaded,  and  all  are  exposed  to  invasion,  it  is  within  the  power 
of  Congress  to  determine  in  what  states  or  districts  such  great  and  immi 
nent  public  danger  exists  as  justifies  the  authorization  of  military  tribunals 
for  the  trial  of  crimes  and  offences  against  the  discipline  or  security  of  the 
army  or  against  the  public  safety. 

In  Indiana,  for  example,  at  the  time  of  the  arrest  of  Milligan  and  his  co-con 
spirators,  it  is  established  by  the  papers  in  the  record,  that  the  State  was  a  mil 
itary  district,  was  the  theatre  of  military  operations,  had  been  actually  invaded, 
and  was  constantly  threatened  with  invasion.  It  appears,  also,  that  a  pow 
erful  secret  association,  composed  of  citizens  and  others,  existed  within  the 
State,  under  military  organization,  conspiring  against  the  draft,  and  plotting 
insurrection,  the  liberation  of  the  prisoners  of  war  at  various  depots,  the 
seizure  of  the  State  and  national  arsenals,  armed  co-operation  with  the 
enemy,  and  war  against  the  national  government. 


APPENDIX.  555 


We  cannot  doubt  that,  in  such  a  time  of  public  danger,  Congress  had 
power,  under  the  Constitution,  to  provide  for  the  organization  of  a  military 
commission,  and  for  trial  by  that  commission  of  persons  engaged  in  this 
conspiracy.  The  fact  that  the  Federal  courts  were  open,  was  regarded 
by  Congress  as  a  sufficient  reason  for  not  exercising  the  power;  but  that 
fact  could  not  deprive  Congress  of  the  right  to  exercise  it.  Those  courts 
might  be  open  and  undisturbed  in  the  execution  of  their  functions,  and  yet 
wholly  incompetent  to  avert  threatened  danger,  or  to  punish,  with  adequate 
promptitude  and  certainty,  the  guilty  conspirators. 

In  Indiana,  the  judges  and  officers  of  the  courts  were  loyal  to  the  govern 
ment.  But  it  might  have  been  otherwise.  In  times  of  rebellion  and  civil 
war  it  may  often  happen,  indeed,  that  judges  and  marshals  will  be  in  active 
sympathy  with  the  rebels,  and  courts  their  most  efficient  allies. 

We  have  confined  ourselves  to  the  question  of  power.  It  was  for  Con 
gress  to  determine  the  question  of  expediency.  And  Congress  did  deter 
mine  it.  That  body  did  not  see  fit  to  authorize  trials  by  military  commis 
sion  in  Indiana,  but  by  the  strongest  implication  prohibited  them.  With 
that  prohibition  we  are  satisfied,  and  should  have  remained  silent,  if  the 
answers  to  the  questions  certified  had  been  put  on  that  ground,  without  de 
nial  of  the  existence  of  a  power  which  we  believe  to  be  constitutional,  and 
important  to  the  public  safety,  —  a  denial  which,  as  we  have  already  sug 
gested,  seems  to  draw  in  question  the  power  of  Congress  to  protect  from 
prosecution  the  members  of  military  commissions  who  acted  in  obedience  to 
their  superior  officers,  and  whose  action,  whether  warranted  by  law  or  not, 
was  approved  by  that  upright  and  patriotic  President,  under  whose  admin 
istration  the  republic  was  rescued  from  threatened  destruction. 

We  have  thus  far  said  little  of  martial  law,  nor  do  we  propose  to  say 
much.  What  we  have  already  said  sufficiently  indicates  our  opinion  that 
there  is  no  law  for  the  government  of  the  citizens,  the  armies  or  the  navy  of 
the  United  States,  within  American  jurisdiction,  which  is  not  contained  in 
or  derived  from  the  Constitution.  And  wherever  our  army  or  navy  may  go 
beyond  our  territorial  limits,  neither  can  go  beyond  the  authority  of  the 
President  or  the  legislation  of  Congress. 

There  are  under  the  Constitution  three  kinds  of  military  jurisdiction  ; 
one  to  be  exercised  both  in  peace  and  war ;  another  to  be  exercised  in  time 
of  foreign  war  without  the  boundaries  of  the  United  States,  or  iu  time  of 
rebellion  and  civil  war  within  States  or  districts  occupied  by  rebels  treated 
as  belligerents;  and  a  third  to  be  exercised  in  time  of  invasion  or  insurrec 
tion  within  the  limits  of  the  United  States,  or  during  rebellion  within  the 
limits  of  States  maintaining  adhesion  to  the  national  government,  when  the 
public  danger  requires  its  exercise.  The  first  of  these  may  be  called  juris 
diction  under  Military  Law,  and  is  found  in  acts  of  Congress  prescribing 
rules  and  articles  of  war,  or  otherwise  providing  for  the  government  of  the 
national  forces ;  the  second  may  be  distinguished  as  Military  Government, 
superseding,  as  far  as  may  be  'deemed  expedient,  the  local  law,  and  exer 
cised  by  the  military  commander  under  the  direction  of  the  President,  with 
the  express  or  implied  sanction  of  Congress ;  while  the  third  may  be  de 
nominated  Martial  Law  Proper,  and  is  called  into  action  by  Congress,  or 
temporarily,  when  the  action  of  Congress  cannot  be  invited,  and  in  the  case 
of  justifying  or  excusing  peril,  by  the  President,  in  times  of  insurrection  or 
invasion,  or  of  civil  or  foreign  war,  within  districts  or  localities  where  ordi 
nary  law  no  longer  adequately  secures  public  safety  and  private  rights. 

We  think  that  the  power  of  Congress,  in  such  times  and  in  such  local 
ities,  to  authorize  trials  for  crimes  against  the  security  and  safety  of  the 
national  forces,  may  be  derived  from  its  constitutional"  authority  to  raise 


556 


APPENDIX. 


and  support  armies  and  to  declare  war,  if  not  from  its  constitutional  author 
ity  to  provide  for  governing  the  national  forces. 

We  have  no  apprehension  that  this  power,  under  our  American  system 
of  government,  in  which  all  official  authority  is  derived  from  the  people,  and 
exercised  under  direct  responsibility  to  the  people,  is  more  likely  to  be 
abused  than  the  power  to  regulate  commerce,  or  the  power  to  borrow  money. 
And  we  are  unwilling  to  give  our  assent  by  silence  to  expressions  of  opinion 
which  seem  to  us  calculated,  though  not  intended,  to  cripple  the  constitu 
tional  powers  of  the  government,  and  to  augment  the  public  dangers  in 
times  of  invasion  and  rebellion. 

Mr.  Justice  Wayne,  Mr.  Justice  Swayne,  and  Mr.  Justice  Miller  concur 
with  me  in  these  views. 


CUMMINGS  v.  THE  STATE  OF  MISSOURI,  4  Wallace,  S.  C.  Rep.  316. 
Mr.  Justice  Field  delivered  the  opinion  of  the  court :  — 

This  case  comes  before  us  on  a  writ  of  error  to  the  Supreme  Court  of 
Missouri,  and  involves  a  consideration  of  the  test  oath  imposed  by  the 
constitution  of  that  State.  The  plaintiff  in  error  is  a  priest  of  the  Roman 
Catholic  Church,  and  was  indicted  and  convicted  in  one  of  the  Circuit  Courts 
of  the  State^of  the  crime  of  teaching  and  preaching  as  a  priest, and  minister 
of  that  religious  denomination  without  having  first  tak^en  the  oath,  and  was 
sentenced  to  pay  a  fine  of  five  hundred  dollars,  and  to  be  committed  to  jail 
until  the  same  was  paid.  On  appeal  to  the  Supreme  Court  of  the  State, 
the  judgment  was  affirmed. 

The  oath  prescribed  by  the  Constitution,  divided  into  its  separable  parts, 
embraces  more  than  thirty  distinct  affirmations  or  tests.  Some  of  the  acts, 
against  which  it  is  directed,  constitute  offences  of  the  highest  grade,  to  which, 
upon  conviction,  heavy  penalties  are  attached.  Some  of  the  acts  have  never 
been  classed  as  offences  in  the  laws  of  any  State,  and  some  of  the  acts,  under 
many  circumstances,  would  not  even  be  blameworthy.  It  requires  the  affiant 
to  deny  not  only  that  he  has  ever  "  been  in  armed  hostility  to  the  United 
States,  or  to  the  lawful  authorities  thereof,"  but,  among  other  things,  that 
he  has  ever,  "  by  act  or  word,"  manifested  his  adherence  to  the  cause  of 
the  enemies  of  the  United  States,  foreign  or  domestic,  or  his  desire  for  their 
triumph  over  the^  arms  of  the  United  States,  or  his  sympathy  with  those 
engaged  in  rebellion,  or  has  ever  harbored  or  aided  any  person  engaged  in 
guerrilla  warfare  against  the  loyal  inhabitants  of  the  United  States,  or  has 
ever  entered  or  left  the  State  for  the  purpose  of  avoiding  enrolment  or  draft 
in  the  military  service  of  the  United  States ;  or,  to  escape  the  performance 
of  duty  in  the  militia  of  the  United  States,  has  ever  indicated,  in  any  terms, 
his  disaffection  to  the  government  of  the  United  States  in  its  contest  with 
the  rebellion. 

Every  person  who  is  unable  to  take  this  oath  is  declared  incapable  of 
holding,  in  the  ^  State,  "  any  office  of  honor,  trust,  or  profit  under  its  au 
thority,  or  of  being  an  officer,  councilman,  director,  or  trustee,  or  other  man 
ager  of  any  corporation,  public  or  private,  now  existing  or  hereafter 
established  by  its  authority,  or  of  acting  as  a  professor  or  teacher  in  any 
educational  institution,  or  in  any  common  or  other  school,  or  of  holding  any 
real  estate  or  other  property  in  trust  for  the  use  of  any  church,  religious 
society,  or  congregation." 

And  every  person  holding,  at  the  time  the  Constitution  takes  effect,  any 


APPENDIX.  557 

of  the  offices,  trusts,  or  positions  mentioned,  is  required,  within  sixty  days 
thereafter,  to  take  the  oath ;  and,  if  he  fail  to  comply  with  this  requirement, 
it  is  declared  that  his  office,  trust,  or  position  shall  ipso  facto  become 
vacant. 

No  person,  after  the  expiration  of  the  sixty  days,  is  permitted,  without 
taking  the  oath,  "  to  practise  as  an  attorney  or  counsellor  at  law,  nor  after 
that  period  can  any  person  be  competent,  as  a  bishop,  priest,  deacon,  minis 
ter,  elder,  or  other  clergyman,  of  any  religious  persuasion,  sect,  or  denomi 
nation,  to  teach,  or  preach,  or  solemnize  marriages." 


exercising 

specified,  v 

in  taking  it  is  declared~to  be  perjury,  punishable  by  imprisonment  in  the 

penitentiary. 

The  oath  thus  required  is,  for  its  severity,  without  any  precedent  that  we 
can  discover.  In  the  first  place,  it  is  retrospective ;  it  embraces  all  the  past 
from  this  day ;  and,  if  taken  years  hence,  it  will  also  cover  all  the  interven 
ing  period.  In  its  retrospective  feature  we  believe  it  is  peculiar  to  this 
country.  In  England  and  France  there  have  been  test  oaths,  but  they  were 
always  limited  to  an  affirmation  of  present  belief,  or  present  disposition  to 
wards  the  government,  and  were  never  exacted  with  reference  to  particular 
instances  of  past  misconduct.  In  the  second  place,  the  oath  is  directed  not 
merely  against  overt  and  visible  acts  of  hostility  to  the  government,  but  is 
intended  to  reach  words,  desires,  and  sympathies,  also.  And,  in  the  third 
place,  it  allows  no  distinction  between  acts  springing  from  malignant  enmity 
and  acts  which  may  have  been  prompted  by  charity,  or  affection,  or  relation 
ship.  If  one  has  ever  expressed  sympathy  with  any  who  were  drawn  into 
the  rebellion,  even  if  the  recipients  of  that  sympathy  were  connected  by  the 
closest  ties  of  blood,  he  is  as  unable  to  subscribe  to  the  oath  as  the  most 
active  and  the  most  cruel  of  the  rebels,  and  is  equally  debarred  from  the 
offices  of  honor  or  trust,  and  the  positions  and  employments  specified. 

But,  as  it  was  observed  by  the  learned  counsel  who  appeared  on  behalf 
of  the  State  of  Missouri,  this  court  cannot  decide  the  case  upon  the  justice 
or  hardship  of  these  provisions.  Its  duty  is  to  determine  whether  they  are 
in  conflict  with  the  Constitution  of  the  United  States.  On  behalf  of  Mis 
souri,  it  is  urged  that  they  only  prescribe  a  qualification  for  holding  certain 
offices,  and  practising  certain  callings,  and  that  it  is  therefore  within  the 
power  of  the  State  to  adopt  them.  On  the  other  hand,  it  is  contended  that 
they  are  in  conflict  with  that  clause  of  the  Constitution  which  forbids  any 
State  to  pass  a  bill  of  attainder  or  an  ex  post  facto  law. 

We  admit  the  propositions  of  the  counsel  of  Missouri,  that  the  States  which 
existed  previous  to  the  adoption  of  the  Federal  Constitution  possessed 
originally  all  the  attributes  of  sovereignty  ;  that  they  still  retain  those  attri 
butes,  except  as  they  have  been  surrendered  by  the  formation  of  the  Con 
stitution,  and  the  amendments  thereto ;  that  the  new  States,  upon  their 
admission  into  the  Union,  became  invested  with  equal  rights,  and  were, 
thereafter,  subject  only  to  similar  restrictions,  and  that  among  the  rights 
reserved  to  the  States  is  the  right  of  each  State  to  determine  the  qualifica 
tions  for  office,  and  the  conditions  upon  which  its  citizens  may  exercise  their 
various  callings  and  pursuits  within  its  jurisdiction. 

These  are  general  propositions,  and  involve  principles  of  the  highest  mo 
ment.  But  it  by  no  means  follows  that,  under  the  form  of  creating  a  quali 
fication  or  attaching  a  condition,  the  States  can  in  effect  inflict  a  punishment 
for  a  past  act  which  was  not  punishable  at  the  time  it  was  committed.  The 
question  is  not  as  to  the  existence  of  the  power  of  the  State  over  matters  of 


558 


APPENDIX. 


internal  police,  but  whether  that  power  has  been  made  in  the  present  case 
an  instrument  for  the  infliction  of  punishment  against  the  inhibition  of  the 
Constitution. 

Qualifications  relate  to  the  fitness  or  capacity  of  the  party  for  a  particular 
pursuit  or  profession.  Webster  defines  the  term  to  mean  "any  natural 
endowment  or  any  acquirement  which  fits  a  person  for  a  place,  office,  or  em 
ployment,  or  enables  him  to  sustain  any  character,  with  success."  It  is 
evident  from  the  nature  of  the  pursuits  and  professions  of  the  parties, 
placed  under  disabilities  by  the  constitution  of  Missouri,  that  many  of  the 
acts,  from  the  taint  of  which  they  must  purge  themselves,  have  no  possible 
relation  to  their  fitness  for  those  pursuits  and  professions.  There  can  be  no 
connection  between  the  fact  that  Mr.  Cummings  entered  or  left  the  State  of 
Missouri  to  avoid  enrolment  or  draft  in  the  military  service  of  the  United 
States  and  his  fitness  to  teach  the  doctrines  or  administer  the  sacraments 
of  his  church ;  nor  can  a  fact  of  this  kind  or  the  expression  of  words  of 
sympathy  with  some  of  the  persons  drawn  into  the  rebellion  constitute  any 
evidence  of  the  unfitness  of  the  attorney  or  counsellor  to  practise  his  profes 
sion,  or  of  the  professor  to  teach  the  ordinary  branches  of  education,  or  of 
the  want  of  business  knowledge  or  business  capacity  in  the  manager  of  a  cor 
poration,  or  in  any  director  or  trustee.  It  is  manifest  upon  the  simple  state 
ment  of  many  of  the  acts  and  of  the  professions  and  pursuits,  that  there  is 
no  such  relation  between  them  as  to  render  a  denial  of  the  commission  of 
the  acts  at  all  appropriate  as  a  condition  of  allowing  the  exercise  of  the  pro 
fessions  and  pursuits.  The  oath  could  not,  therefore,  have  been  required 
as  a  means  of  ascertaining  whether  parties  were  qualified  or  not  for  their 
respective  callings  or  the  trusts  with  which  they  were  charged.  It  wa»  re 
quired  in  order  to  reach  the  person,  not  the  calling.  It  was  exacted,  not 
from  any  notion  that  the  several  acts  designated  indicated  unfitness  for  the 
callings,  but  because  it  was  thought  that  the  several  acts  deserved  punish 
ment,  and  that  for  many  of  them  there  was  no  way  to  inflict  punishment 
except  by  depriving  the  parties,  who  had  committed  them,  of  some  of  the 
rights  and  privileges  of  the  citizen. 

The  disabilities  created  by  the  constitution  of  Missouri  must  be  regarded 
as  penalties  —  they  constitute  punishment.  We  do  not  agree  with  the 
counsel  of  Missouri  that  "  to  punish  one  is  to  deprive  him  of  life,  liberty,  or 
property,  and  that  to  take  from  him  anything  less  than  these  is  no  punish 
ment  at  all."  The  learned  counsel  does  not  use  these  terms  —  life,  liberty, 
and  property  —  as  comprehending  every  right  known  to  the  law.  He  does 
not  include  under  liberty  freedom  from  outrage  on  the  feelings  as  well  as 
restraints  on  the  person.  He  does  not  include  under  property  those  -estates 
which  one  may  acquire  in  professions,  though  they  are  often  "the  source  of 
the  highest  emoluments  and  honors.  The  deprivation  of  any  rights,  civil 
or  political,  previously  enjoyed,  may  be  punishment,  the  circumstances 
attending  and  the  causes  of  the  deprivation  determining  this  fact.  Dis 
qualification  from  office  may  be  punishment,  as  in  cases  of  conviction  upon 
impeachment.  Disqualification  from  the  pursuits  of  a  lawful  avocation,  or 
from  positions  of  trust,  or  from  the  privilege  of  appearing  in  the  courts, 
or  acting  as  an  executor,  administrator,  or  guardian,  may  also,  and  often 
has  been,  imposed  as  punishment.  By  statute  9  and  10  William  III.,  chap. 
32,  if  any  person  educated  in  or  having  made  a  profession  of  the  Christian 
religion,  did,  "  by  writing,  printing,  teaching,  or  advised  speaking,"  deny 
the  truth  of  the  religion,  or  the  divine  authority  of  the  Scriptures,  he  was 
for  the  first  offence  rendered  incapable  to  hold  any  office  or  place  of  trust ; 
and  for  the  second  he  was  rendered  incapable  of  bringing  any  action,  being 


APPENDIX.  559 

guardian,  executor,  legatee,  or  purchaser  of  lands,  besides  being  subjected 
to  three  years'  imprisonment  without  bail.* 

By  statute  1,  George  I.,  chap.  13,  contempts  against  the  king's  title,  aris 
ing  from  refusing  or  neglecting  to  take  certain  prescribed  oaths,  and  yet 
acting  in  an  office  or  place  of  trust  for  which  they  were  required,  were  pun 
ished  by  incapacity  to  hold  any  public  office  ;  to  prosecute  any  suit ;  to 
be  guardian  or  executor ;  to  take  any  legacy  or  deed  of  gift ;  and  to  vote 
at  any  election  for  members  of  Parliament ;  and  the  offender  was  also 
subject  to  a  forfeiture  of  five  hundred  pounds  to  any  one  who  would  sue  for 
the  same.f 

"  Some  punishments,"  says  Blackstone,  "  consist  in  exile  or  banishment, 
by  abjuration  of  the  realm  or  transportation  ;  others  in  loss  of  liberty  by 
perpetual  or  temporary  imprisonment.  Some  extend  to  confiscation  by  for 
feiture  of  lands  or  movables,  or  both,  or  of  the  profits  of  lands  for  life ; 
others  induce  a  disability  of  holding  offices  or  employments,  being  heirs, 
executors,  and  the  like."  J 

In  France,  deprivation  or  suspension  of  civil  rights,  or  of  some  of  them, 
and  among  these  of  the  right  of  voting,  of  eligibility  to  office,  of  taking  part 
in  family  councils,  of  being  guardian  or  trustee,  of  bearing  arms,  and  of 
teaching  or  being  employed  in  a  school  or  seminary  of  learning,  are  punish 
ments  prescribed  by  her  code. 

The  theory  upon  which  our  political  institutions  rest  is,  that  all  men  have 
certain  inalienable  rights  —  that  among  these  are  life,  liberty,  and  the  pur 
suit  of  happiness  ;  and  that  in  the  pursuit  of  happiness  all  avocations,  all 
honors,  all  positions,  are  alike  open  to  every  one,  and  that  in  the  protection 
of  these  rights  all  are  equal  before  the  law.  Any  deprivation  or  suspension 
of  any  of  these  rights  for  past  conduct  is  punishment,  and  can  be  in  no 
other  wise  defined. 

Punishment  not  being,  therefore,  restricted,  as  contended  by  counsel,  to 
the  deprivation  of  life,  liberty,  or  property,  but  also  embracing  deprivation 
or  suspension  of  political  or  civil  rights,  and  the  disabilities  prescribed  by  the 
provisions  of  the  Missouri  constitution  being  in  effect  punishment,  we  pro 
ceed  to  consider  \vhether  there  is  any  inhibition  in  the  Constitution  of  the 
United  States  against  their  enforcement. 

The  counsel  for  Missouri  closed  his  argument  in  this  case  by  presenting 
a  striking  picture  of  the  struggle  for  ascendency  in  that  State  during  the 
recent  rebellion  between  the  friends  and  the  enemies  of  the  Union,  and  of 
the  fierce  passions  which  that  struggle  aroused.  It  was  in  the  midst  of  the 
struggle  that  the  present  Constitution  was  framed,  although  it  was  not 
adopted  by  the  people  until  the  war  had  closed.  It  would  have  been 
strange,  therefore,  had  it  not  exhibited  in  its  provisions  some  traces  of  the 
excitement  amidst  which  the  convention  held  its  deliberations. 

It  was  against  the  excited  action  of  the  States,  under  such  influences  as 
these,  that  the  framers  of  the  Federal  Constitution  intended  to  guard.  In 
Fletcher  v.  Pec/c,§  Mr.  Chief  Justice  Marshall,  speaking  of  such  action,  uses 
this  language  :  "  Whatever  respect  might  have  been  felt  for  the  State 
sovereignties,  it  is  not  to  be  disguised  that  the  framers  of  the  Constitution 
viewed  with  some  apprehension  the  violent  acts  which  might  grow  out  of  the 
feelings  of  the  moment ;  and  that  the  people  of  the  United  States,  in  adopt 
ing  that  instrument,  have  manifested  a  determination  to  shield  themselves 
and  their  property  from  the  effects  of  those  sudden  and  strong  passions  to 
which  men  are  exposed.  The  restrictions  on  the  legislative  power  of  the 
States  are  obviously  founded  in  this  sentiment ;  and  the  Constitution  of  the 

*  4  Black.  44.  t  Id.  124.  J  Id.  377.  §  t5  Cranch,  137. 


560  APPENDIX. 


United  States  contains  what  may  be  deemed  a  bill  of  rights  for  the  people 
of  each  State." 

"  '  No  State  shall  pass  any  bill  of  attainder,  ex  post  facto  law.  or  law  im 
pairing  the  obligation  of  contracts.' " 

A  bill  of  attainder  is  a  legislative  act  which  inflicts  punishment  without  a 
judicial  trial. 

If  the  punishment  be  less  than  death,  the  act  is  termed  a  bill  of  pains  and 
penalties.  Within  the  meaning  of  the  Constitution,  bills  of  attainder  in 
clude  bills  of  pains  and  penalties.  In  these  cases  the  legislative  body,  in 
addition  to  its  legitimate  functions,  exercises  the  powers  and  office  of  judge  ; 
it  assumes,  in  the  language  of  the  text-books,  judicial  magistracy ;  it  pro 
nounces  upon  the  guilt  of  the  party,  without  any  of  the  forms  or  safeguards 
of  trial ;  it  determines  the  sufficiency  of  the  proofs  produced,  whether 
conformable  to  the  rules  of  evidence  or  otherwise  ;  and  it  fixes  the  degree 
of  punishment  in  accordance  with  its  own  notions  of  the  enormity  of  the 
offence. 

"Bills  of  this  sort,"  says  Mr.  Justice  Story,  "  have  been  most  usually 
passed  in  England  in  times  of  rebellion,  or  gross  subserviency  to  the  crown, 
or  of  violent  political  excitements  ;  periods  in  which  all  nations  are  most 
liable  (as  well  the  free  as  the  enslaved)  to  forget  their  duties,  and  to  trample 
upon  the  rights  and  liberties  of  others."  * 

These  bills  are  generally  directed  against  individuals  by  name ;  but  they 
may  be  directed  against  a  whole  class.  The  bill  against  the  Earl  of  Kildare 
and  others,  passed  in  the  reign  of  Henry  VIIL,t  enacted  that  "  all  such  per 
sons  which  be  or  heretofore  have  been  comforters,  abettors,  partakers,  con 
federates,  or  adherents  unto  the  said  "  late  earl,  and  certain  other  parties, 
who  were  named,  "  in  his  or  their  false  and  traitorous  acts  and  purposes, 
shall  in  like  wise  stand,  and  be  attainted,  adjudged,  and  convicted  of  high 
treason  ; "  and  that  "  the  same  attainder,  judgment,  and  conviction  against 
the  said  comforters,  abettors,  partakers,  confederates,  and  adherents,  shall 
be  as  strong  and  effectual  in  the  law  against  them,  and  every  of  them,  as 
though  they  and  every  of  them  had  been  specially,  singularly,  and  particu 
larly  named  by  their  proper  names  and  surnames  in  the  said  act." 

These  bills  may  inflict  punishment  absolutely,  or  may  inflict  it  condition 
ally. 

The  bill  against  the  Earl  of  Clarendon,  passed  in  the  reign  of  Charles  the 
Second,  enacted  that  the  earl  should  suffer  perpetual  exile,  and  be  forever 
banished  from  the  realm  ;  and  that  if  he  returned,  or  was  found  in  England, 
or  in  any  other  of  the  king's  dominions,  after  the  first  of  February,  1667, 
he  should  suffer  the  pains  and  penalties  of  treason ;  with  the  proviso,  how 
ever,  that  if  he  surrendered  himself  before  the  said  first  day  of  February 
for  trial,  the  penalties  and  disabilities  declared  should  be  void  and  of  no 
effect.  J 

"  A  British  act  of  Parliament,"  to  cite  the  language  of  the  Supreme  Court 
of  Kentucky,  "  might  declare,  that  if  certain  individuals,  or  a  class  of  indi 
viduals,  failed  to  do  a  given  act  by  a  named  day,  they  should  be  deemed  to 
be,  and  treated  as,  convicted  felons  or  traitors.  Such  an  act  comes  pre 
cisely  within  the  definition  of  a  bill  of  attainder,  and  the  English  courts 
would  enforce  it  without  indictment  or  trial  by  jury."  § 

If  the  clauses  of  the  second  article  of  the  constitution  of  Missouri,  to  which 

*  Commentaries,  §  1344. 

t  28  Henry  VIII.  Chap.  18;  3  Stats,  of  the  Realm,  694. 

J  Printed  in  6  Howell's  State  Trials,  p.  391. 

§  Gaines  v.  Buford,  1  Dana,  510. 


APPENDIX.  561 

we  have  referred,  had  in  terms  declared  that  Mr.  Cummings  was  guilty,  or 
should  be  held  guilty,  of  having  been  in  armed  hostility  to  the  United  States, 
or  of  having  entered  that  State  to  avoid  being  enrolled  or  drafted  into  the 
military  service  of  the  United  States,  and,  therefore,  should  be  deprived  of 
the  right  to  preach  as  a  priest  of  the  Catholic  Church,  or  to  teach  in  any  in 
stitution  of  learning,  there  could  be  no  question  that  the  clauses  would  con 
stitute  a  bill  of  attainder  within  the  meaning  of  the  Federal  Constitution. 
If  these  clauses,  instead  of  mentioning  his  name,  had  declared  that  all 
priests  and  clergymen  within  the  State  of  Missouri  were  guilty  of  these  acts, 
or  should  be  held  guilty  of  them,  and  hence  be  subjected  to  the  like  depriva 
tion,  the  clauses  would  be  equally  open  to  objection.  And,  further,  if 
these  clauses  had  declared  that  all  such  priests  and  clergymen  should  be  so 
held  guilty,  and  be  thus  deprived,  provided  they  did  not,  by  a  day  desig 
nated,  do  certain  specified  acts,  they  would  be  no  less  within  the  inhibition 
of  the  Federal  Constitution. 

In  all  these  cases  there  would  be  the  legislative  enactment  creating  the 
deprivation  without  any  of  the  ordinary  forms  and  guards  provided  for  the 
security  of  the  citizen  in  the  administra'tion  of  justice  by  the  established  tri 
bunals. 

The  results  which  would  follow  from  clauses  of  the  character  mentioned 
do  follow  from  the  clauses  actually  adopted.  The  difference  between  the 
last  case  supposed  and  the  case  actually  presented  is  one  of  form  only,  and 
not  of  substance.  The  existing  clauses  presume  the  guilt  of  the  priests  and 
clergymen,  and  adjudge  the  deprivation  of  their  right  to  preach  or  teach 
unless  the  presumption  be  first  removed  by  their  expurgatory  oath  —  in 
other  words,  they  assume  the  guilt  and  adjudge  the  punishment  condi 
tionally.  The  clauses  supposed  differ  only  i'n  that  they  declare  the  guilt 
instead  of  assuming  it.  The  deprivation  is  effected  with  equal  certainty  in 
the  one  case  as  it  would  be  in  the  other,  but  not  with  equal  directness. 
The  purpose  of  the  law-maker  in  the  case  supposed  would  be  openly 
avowed  ;  in  the  case  existing  it  is  only  disguised.  The  legal  result  must  be 
the  same,  for  what  cannot  be  done  directly  cannot  be  done  indirectly.  The 
Constitution  deals  with  substance,  not  shadows.  Its  inhibition  was  levelled 
at  the  thing,  not  the  name.  It  intended  that  the  rights  of  the  citizen  should 
be  secure  against  deprivation  for  past  conduct  by  legislative  enactment,  un 
der  any  form,  however  disguised.  If  the  inhibition  can  be  evaded  by  the 
form  of  the  enactment,  its  insertion  in  the  fundamental  law  was  a  vain  and 
futile  proceeding. 

We  proceed  to  consider  the  second  clause  of  what  Mr.  Chief  Justice  Mar 
shall  terms  a  bill  of  rights  for  the  people  of  each  State  —  the  clause  which 
inhibits  the  passage  of  an  ex  posi  facto  law. 

By  an  ex  post  facto  law  is  meant  one  which  imposes  a  punishment  for  an 
act  which  was  not  punishable  at  the  time  it  was  committed  ;  or  imposes  ad 
ditional  punishment  to  that  then  prescribed  ;  or  changes  the  rules  of  evi 
dence  by  which  less  or  different  testimony  is  sufficient  to  convict  than  was 
then  required. 

In  Fletcher  v.  Peck,  Mr.  Chief  Justice  Marshall  denned  an  ex  post  facto 
law  to  be  one  "  which  renders  an  act  punishable  in  a  manner  in  which  it 
was  not  punishable  when  it  was  committed."  "  Such  a  law,"  said  that  emi 
nent  judge,  "  may  inflict  penalties  on  the  person,  or  may  inflict  pecuniary 
penalties  which  swell  the  public  treasury.  The  legislature  is  then  prohib 
ited  from  passing  a  law  by  which  a  man's  estate,  or  any  part  of  it,  shall  be 
seized  for  a  crime,  which  was  not  declared  by  some  previous  law  to  render 
him  liable  to  that  punishment.  Why,  then,  should  violence  be  done  to  the 
natural  meaning  of  words  for  the  purpose  of  leaving  to  the  legislature  the 


562  APPENDIX. 

power  of  seizing  for  public  use  the  estate  of  an  individual,  in  the  form  of  a 
law  annulling  the  title  by  which  he  holds  the  estate  ?  The  court  can  per 
ceive  no  sufficient  grounds  for  making  this  distinction.  This  rescinding  act 
would  have  the  effect  of  an  ex  post  facto  law.  It  forfeits  the  estate  of 
Fletcher  for  a  crime  not  committed  by  himself,  but  by  those  from  whom  he 
purchased.  This  cannot  be  effected  in  the  form  of  an  ex  post  facto  law,  or 
bill  of  attainder ;  why,  then,  is  it  allowable  in  the  form  of  a  law  annulling 
the  original  grant  ?  " 

The  act  to  which  reference  is  here  made  was  one  passed  by  the  State  of 
Georgia,  rescinding  a  previous  act,  under  which  lands  had  been  granted. 
The  rescinding  act,  annulling  the  title  of  the  grantees,  did  not,  in  terms, 
define  any  crimes,  or  inflict  any  punishment,  or  direct  any  judicial  proceed 
ings  ;  yet,  inasmuch  as  the  legislature  was  forbidden  from  passing  any  law 
by  which  a  man's  estate  could  be  seized  for  a  crime,  which  was  not  declared 
such  by  some  previous  law  rendering  him  liable  to  that  punishment,  the 
Chief  Justice  was  of  opinion  that  the  rescinding  act  had  the  effect  of  an  ex 
post  facto  law,  and  was  within  the  constitutional  prohibition. 

The  clauses  in  the  Missouri  constitution,  which  are  the  subject  of  consid 
eration,  do  not,  in  terms,  define  any  crimes,  or  declare  that  any  punishment 
shall  be  inflicted,  but  they  produce  the  same  result  upon  the  parties,  against 
whom  they  are  directed,  as  though  the  crimes  were  defined  and  the  punish 
ment  was  declared.  They  assume  that  there  are  persons  in  Missouri  who 
are  guilty  of  some  of  the  acts  designated.  They  would  have  no  meaning  in 
the  constitution  were  not  such  the  fact.  They  are  aimed  at  past  acts,  and 
not  future  acts.  They  were  intended  especially  to  operate  upon  parties  who, 
in  some  form  or  manner,  by  action  or  words,  directly  or  indirectly,  had 
aided  or  countenanced  the  rebellion,  or  sympathized  with  parties  engaged 
in  the  rebellion,  or  had  endeavored  to  escape  the  proper  responsibilities  and 
duties  of  a  citizen  in  time  of  war ;  and  they  were  intended  to  operate  by 
depriving  such  persons  of  the  right  to  hold  certain  offices  and  trusts,  and  to 
pursue  their  ordinary  and  regular  avocations.  This  deprivation  is  punish 
ment;  nor  is  it  any  less  so  because  a  way  is  opened  for  escape  from  it  by 
the  expurgatory  oath.  The  framers  of  the  constitution  of  Missouri  knew  at 
the  time  that  whole  classes  of  individuals  would  be  unable  to  take  the  oath 
prescribed.  To  them  there  is  no  escape  provided  ;  to  them  the  deprivation 
was  intended  to  be,  and  is,  absolute  and  perpetual.  To  make  the  enjoyment 
of  a  right  dependent  upon  an  impossible  condition  is  equivalent  to  an  abso 
lute  denial  of  the  right  under  any  condition,  and  such  denial,  enforced  for  a 
past  act,  is  nothing  less  than  punishment  imposed  for  that  act.  It  is  a  mis 
application  of  terms  to  call  it  anything  else. 

Now,  some  of  the  acts  to  which  the  expurgatory  oath  is  directed  were  not 
offences  at  the  time  they  were  committed.  It  was  no  offence  against  any 
law  to  enter  or  leave  the  State  of  Missouri  for  the  purpose  of  avoiding  en 
rolment  or  draft  in  the  military  service  of  the  United  States,  however  much 
the  evasion  of  such  service  might  be  the  subject  of  moral  censure.  Clauses 
which  prescribe  a  penalty  for  an  act  of  this  nature  are  within  the  terms  of 
the  definition  of  an  ex  post  facto  law — "they  impose  a  punishment  for  an 
act  not  punishable  at  the  time  it  was  committed." 

Some  of  the  acts  at  which  the  oath  is  directed  constituted  high  offences 
at  the  time  they  were  committed,  to  which,  upon  conviction,  fine  and  im 
prisonment,  or  other  heavy  penalties,  were  attached.  The  clauses  which 
provide  a  further  penalty  for  these  acts  are  also  within  the  definition  of  an 
ex  post  facto  law  —  "  they  impose  additional  punishment  to  that  prescribed 
when  the  act  was  committed." 

And  this  is  not  all.     The  clauses  in  question  subvert  the  presumptions  of 


APPENDIX.  563 

innocence,  and  alter  the  rules  of  evidence,  which  heretofore,  under  the  uni 
versally  recognized  principles  of  the  common  law,  have  been  supposed  to 
be  fundamental  and  unchangeable.  They  assume  that  the  parties  are 
guilty  ;  they  call  upon  the  parties  to  establish  their  innocence  ;  and  they  de 
clare' that  such  innocence  can  be  shown  only  in  oneway — by  an  inquisi 
tion,  in  the  form  of  an  expurgatory  oath,  into  the  consciences  of  the  par 
ties. 

The  objectionable  character  of  these  clauses  will  be  more  apparent  if  we 
put  them  into  the  ordinary  form  of  a  legislative  act.  Thus,  if  instead  of  the 
general  provisions  in  the  constitution  the  convention  had  provided  as  fol 
lows  :  Be  it  enacted,  that  all  persons  who  have  been  in  armed  hostility  to 
the  United  States  shall,  upon  conviction  thereof,  not  only  be  punished  as  the 
laws  provided  at  the  time  the  offences  charged  were  committed,  but  shall 
also  be  thereafter  rendered  incapable  of  holding  any  of  the  offices,  trusts, 
and  positions,  and  of  exercising  any  of  the  pursuits  mentioned  in  the  second 
article  of  the  constitution  of  Missouri  ;  —  no  one  would  have  any  doubt  of 
the  nature  of  the  enactment.  It  would  be  an  ex  post  facto  law,  and  void  ; 
for  it  would  add  a  new  punishment  for  an  old  offence.  So,  too,  if  the  con 
vention  had  passed  an  enactment  of  a  similar  kind  with  reference  to  those 
acts  which  do  not  constitute  offences.  Thus,  had  it  provided  as  follows  : 
Be  it  enacted,  that  all  persons  who  have  heretofore,  at  any  time,  entered  or 
left  the  State  of  Missouri,  with  intent  to  avoid  enrolment  or  draft  in  the 
military  service  of  the  United  States,  shall,  upon  conviction  thereof,  be  for 
ever  rendered  incapable  of  holding  any  office  of  honor,  trust,  or  profit  in  the 
State,  or  of  teaching  in  any  seminary  of  learning,  or  of  preaching  as  a  min 
ister  of  the  gospel  of  any  denomination,  or  of  exercising  any  of  the  profes 
sions  or  pursuits  mentioned  in  the  second  article  of  the  constitution  ;  — 
there  would  be  no  question  of  the  character  of  the  enactment.  It  would  be 
an  ex  post  facto  law,  because  it  would  impose  a  punishment  for  an  act  not 
punishable  at  the  time  it  was  committed. 

The  provisions  of  the  constitution  of  Missouri  accomplish  precisely  what 
enactments  like  those  supposed  would  have  accomplished.  They  impose  the 
same  penalty,  without  the  formality  of  a  judicial  trial  and  conviction  ;  for 
the  parties  embraced  by  the  supposed  enactments  would  be  incapable  of 
taking  the  oath  prescribed  ;  to  them  its  requirement  would  be  an  impossible 
condition.  Now,  as  the  State,  had  she  attempted  the  course  supposed, 
would  have  failed,  it  must  follow  that  any  other  mode  producing  the  same 
result  must  equally  fail.  The  provision  of  the  Federal  Constitution,  in 
tended  to  secure  the  liberty  of  the  citizen,  cannot  be  evaded  by  the  form  in 
which  the  power  of  the  State  is  exerted.  If  this  were  not  so, 'if  that  which 
cannot  be  accomplished  by  means  looking  directly  to  the  end,  can  be  ac 
complished  by  indirect  means,  the  inhibition  may  be  evaded  at  pleasure. 
No  kind  of  oppression  can  be  named,  against  which  the  frarners  of  the  Con 
stitution  intended  to  guard,  which  may  not  be  effected.  Take  the  case  sup 
posed  by  counsel  —  that  of  a  man  tried  for  treason  and  acquitted,  or,  if  con 
victed,  pardoned  —  the  legislature  may  nevertheless  enact  that,  if  the  per 
son  thus  acquitted  or  pardoned  does  not  take  an  oath  that  he  never  has 
committed  the  acts  charged  against  him,  he  shall  not  be  permitted  to  hold 
any  office  of  honor,  or  trust,  or  profit,  or  pursue  any  avocation  in  the  State. 
Take  the  case  before  us  ;  —  the  constitution  of  Missouri,  as  we  have  seen, 
excludes,  on  failure  to  take  the  oath  prescribed  by  it,  a  large  class  of  per 
sons  within  her  borders  from  numerous  positions  and  pursuits  ;  it  would 
have  been  equally  within  the  power  of  the  State  to  have  extended  the  exclu 
sion  so  as  to  deprive  the  parties,  who  are  unable  to  take  the  oath,  from  any 
avocation  whatever  in  the  State.  Take  still  another  case  ;  — suppose  that,  in 


564  APPENDIX. 

the  progress  of  events,  persons  now  in  the  minority  in  the  State  should  ob 
tain  the  ascendency,  and  secure  the  control  of  the  government ;  nothing 
could  prevent,  if  the  constitutional  prohibition  can  be  evaded,  the  enactment 
of  a  provision  requiring  every  person,  as  a  condition  of  holding  any  position 
of  honor  or  trust,  or  of  pursuing  any  avocation  in  the  State,  to  take  an  oath 
that  he  had  never  advocated,  or  advised,  or  supported  the  imposition  of  the 
present  expurgatory  oath.  Under  this  form  of  legislation  the  most  flagrant 
invasion  of  private  rights,  in  periods  of  excitement,  may  be  enacted,  and 
individuals,  and  even  whole  classes,  may  be  deprived  of  political  and  civil 
rights. 

A  question  arose  in  New  York,  soon  after  the  treaty  of  peace  of  1783, 
upon  a  statute  of  that  State,  which  involved  a  discussion  of  the  nature  and 
character  of  these  expurgatory  oaths,  when  used  as  a  means  of  inflicting 
punishment  for  past  conduct.  The  subject  was  regarded  as  so  important, 
and  the  requirement  of  the  oath  such  a  violation  of  the  fundamental  princi 
ples  of  civil  liberty,  and  the  rights  of  the  citizen,  that  it  engaged  the  atten 
tion  of  eminent  lawyers  and  distinguished  statesmen  of  the  time,  and  among 
others  of  Alexander'llamilton.  We  will  cite  some  passages  of  a  paper  left 
by  him  on  the  subject,  in  which,  with  his  characteristic  fulness  and  ability, 
he  examines  the  oath,  and  demonstrates  that  it  is  not  only  a  mode  of  in 
flicting  punishment,  but  a  mode  in  violation  of  all  the  constitutional 
guarantees,  secured  by  the  revolution,  of  the  rights  and  liberties  of  the 
people. 

"  If  we  examine  it "  (the  measure  requiring  the  oath),  said  this  great  law 
yer,  "  with  an  unprejudiced  eye,  we  must  acknowledge,  not  only  that  it  was 
an  evasion  of  the  treaty,  but  a  subversion  of  one  great  principle  of  social 
security,  to  wit :  that  every  man  shall  be  presumed  innocent  until  he  is 
proved  guilty.  This  was  to  invert  the  order  of  things  ;  and,  instead  of 
obliging  the  State  to  prove  the  guilt,  in  order  to  inflict  the  penalty,  it  was  to 
oblige  the  citizen  to  establish  his  own  innocence  to  avoid  the  penalty.  It 
was  to  excite  scruples  in  the  honest  and  conscientious,  and  to  hold  out  a 
bribe  to  perjury.  .  .  .  It  was  a  mode  of  inquiry  who  had  committed  any 
of  those  crimes  to  which  the  penalty  of  disqualification  was  annexed,  with 
this  aggravation,  that  it  deprived  the  citizen  of  the  benefit  of  that  advan 
tage,  which  he  would  have  enjoyed  by  leaving,  as  in  all  other  cases,  the  bur 
den  of  the  proof  upon  the  prosecutor. 

"  To  place  this  matter  in  a  still  clearer  light,  let  it  be  supposed  that,  in 
stead  of  the  mode  of  indictment  and  trial  by  jury,  the  legislature  was  to 
declare  that  every  citizen  who  did  not  swear  he  had  never  adhered  to  the 
King  of  Great  Britain  should  incur  all  the  penalties  which  our  treason  laws 
prescribe.  Would  this  not  be  a  palpable  evasion  of  the  treaty,  and  a  direct 
infringement  of  the  Constitution  ?  The  principle  is  the  same  in  both  cases, 
with  only  this  difference  in  the  consequences  —  that  in  the  instance  already 
acted  upon  the  citizen  forfeits  a  part  of  his  rights  ;  in  the  one  supposed  he 
would  forfeit  the  whole.  The  degree  of  punishment  is  all  that  distinguishes 
the  cases.  In  either,  justly  considered,  it  is  substituting  anew  and  arbitrary 
mode  of  prosecution  to  that  ancient  and  highly  esteemed  one  recognized  by 
the  laws  and  constitution  of  the  State.  I  mean  the  trial  by  jury. 

"  Let  us  not  forget  that  the  Constitution  declares  that  trial  by  jury,  in 
all  cases  in  which  it  has  been  formerly  used,  should  remain  inviolate  for 
ever,  and  that  the  legislature  should  at  no  time  erect  any  new  jurisdiction 
which  should  not  proceed  according  to  the  course  of  the  common  law. 
Nothing  can  be  more  repugnant  to  the  true  genius  of  the  common  law  than 
such  an  inquisition,  as  has  been  mentioned,  into  the  consciences  of  men. 

.     .     If  any  oath  with  retrospect  to  past  conduct  were  to  be  made  the 


APPENDIX.  565 

condition  on  which  individuals,  who  have  resided  within  the  British  lines, 
should  hold  their  estates,  we  should  immediately  see  that  this  proceeding 
would  be  tyrannical,  and  a  violation  of  the  treaty ;  and  yet,  when  the  same 
mode  is  employed  to  divest  that  right,  which  ought  to  be  deemed  still  more 
sacred,  many  of  us  are  so  infatuated  as  to  overlook  the  mischief. 

"  To  say  that  the  persons  who  will  be  affected  by  it  have  previously  for 
feited  that  right,  and  that,  therefore,  nothing  is  taken  away  from  them,  is  a 
begging  of  the  question.  How  do  we  know  who  are  the  persons  in  this  sit 
uation  ?  If  it  be  answered,  this  is  the  mode  taken  to  ascertain  it  —  the  ob 
jection  returns  —  'tis  an  improper  mode  ;  because  it  puts  the  most  essential 
interests  of  the  citizen  upon  a  worse  footing  than  we  should  be  willing  to 
tolerate  where  inferior  interests  were  concerned ;  and  because,  to  elude  the 
treaty,  it  substitutes  for  the  established  and  legal  mode  of  investigating 
crimes  and  inflicting  forfeitures,  one  that  is  unknown  to  the  Constitution, 
and  re]3ugnant  to  the  genius  of  our  law." 

Similar  views  have  frequently  been  expressed  by  the  judiciary  in  cases  in 
volving  analogous  questions.  They  are  presented  with  great  force  in  The 
Matter  of  Dorsey  ;  *  but  we  do  not  deem  it  necessary  to  pursue  the  subject 
further. 

The  judgment  of  the  Supreme  Court  of  Missouri  must  be  reversed,  and 
the  cause  remanded,  with  directions  to  enter  a  judgment  reversing  the  judg 
ment  of  the  Circuit  Court,  and  directing  that  court  to  discharge  the  defend 
ant  from  imprisonment,  and  suffer  him  to  depart  without  day. 

And  it  is  so  ordered. 

The  Chief  Justice,  and  Messrs.  Justices  Swayne,  Davis,  and  Miller  dis 
sented.  In  behalf  of  this  portion  of  the  court,  a  dissenting  opinion  was  de 
livered  by  Mr.  Justice  Miller.  This  opinion  applied  equally  or  more  to  the 
case  of  Ex  Parte  Garland  (the  case  next  following),  which  involved  princi 
ples  of  a  character  bimilar  to  those  discussed  in  this  case.  The  dissenting 
opinion  is,  therefore,  published  after  the  opinion  of  the  court  in  that  case. 


Ex  PARTE  GARLAND,  4  Wallace,  S.  C.  Rep.  374. 
Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

On  the  2d  of  July,  1862,  Congress  passed  an  act  prescribing  an  oath 
to  be  taken  by  every  person  elected  or  appointed  to  any  office  of  honor  or 
profit  under  the  government  of  the  United  States,  either  in  the  civil,  military, 
or  naval  departments  of  the  public  service,  except  the  President,  before  enter 
ing  upon  the  duties  of  his  office,  and  before  being  entitled  to  its  salary,  or 
other  emoluments.  On  the  24th  of  January,  1865,  Congress,  by  a  sup 
plementary  act,  extended  its  provisions  so  as  to  embrace  attorneys  and 
counsellors  of  the  courts  of  the  United  States.  This  latter  act  provides  that 
after  its  passage  no  person  shall  be  admitted  as  an  attorney  and  counsellor 
to  the  bar  of  the  Supreme  Court,  and,  after  the  4th  of  March,  1865,  to  the 
bar  of  any  Circuit  or  District  Court  of  the  United  States,  or  of  the  Court  of 
Claims,  or  be  allowed  to  appear  and  be  heard  by  virtue  of  any  previous 
admission,  or  any  special  power  of  attorney,  unless  he  shall  have  first  taken 
and  subscribed  the  oath  prescribed  by  the  act  of  July  2,  1862.  It  also  pro 
vides  that  the  oath  shall  be  preserved  among  the  files  of  the  court ;  and  if 

*  7  Porter,  294. 


566  APPENDIX. 

any  person  take  it  falsely  he  shall  be  guilty  of  perjury,  and,  upon  conviction, 
shall  be  subject  to  the  pains  and  penalties  of  that  offence. 

At  the  December  Term,  1860,  the  petitioner  was  admitted  as  an  attorney 
and  counsellor  of  this  court,  and  took  and  subscribed  the  oath  then  required. 
By  the  second  rule,  as  it  then  existed,  it  was  only  requisite  to  the  admission 
of  attorneys  and  counsellors  of  this  court,  that  they  should  have  been  such 
officers  for  the  three  previous  years  in  the  highest  courts  of  the  States  to 
which  they  respectively  belonged,  and  that  their  private  and  professional 
character  should  appear  to  be  fair. 

In  March,  1865,  this  rule  was  changed  by  the  addition  of  a  clause  re 
quiring  the  administration  of  the  oath,  in  conformity  with  the  act  of 
Congress. 

In  May,  1861,  the  State  of  Arkansas,  of  which  the  petitioner  was  a 
citizen,  passed  an  ordinance  of  secession,  which  purported  to  withdraw  the 
State  from  the  Union,  and  afterwards,  in  the  same  year,  by  another  ordinance, 
attached  herself  to  the  so-called  Confederate  States,  and  by  act  of  the  Con 
gress  of  that  Confederacy  was  received  as  one  of  its  members. 

The  petitioner  followed  the  State,  and  was  one  of  her  representatives  —  first 
in  the  lower  House,  and  afterwards  in  the  Senate,  of  the  Congress  of  that  Con 
federacy,  and  was  a  member  of  the  Senate  at  the  time  of  the  surrender  of  the 
Confederate  forces  to  the  armies  of  the  United  States. 

In  July,  1865,  he  received  from  the  President  of  the  United  States  a  full 
pardon  for  all  offences  committed  by  his  participation,  direct  or  implied,  in 
the  rebellion.  He  now  produces  his  pardon,  and  asks  permission  to  con 
tinue  to  practise  as  an  attorney  and  counsellor  of  the  court  without  taking 
the  oath  required  by  the  act  of 'January  24,  1865,  and  the  rule  of  the  court, 
which  he  is  unable  to  take,  by  reason  of  the  offices  he  held  under  the  Con 
federate  government.  He  rests  his  application  principally  upon  two  grounds  : 

1st.  That  the  act  of  January  24,  ]865,  so  far  as  it  affects  his  status  in  the 
court,  is  unconstitutional  and  void  ;  and, 

2d.  That,  if  the  act  be  constitutional,  he  is  released  from  compliance  with 
its  provisions  by  the  pardon  of  the  President. 

The  oath  prescribed  by  the  act  is  as  follows  : 

1st.  That  the  deponent  has  never  voluntarily  borne  arms  against  the  United 
States  since  he  has  been  a  citizen  thereof; 

2d.  That  he  has  not  voluntarily  given  aid,  countenance,  counsel,  or  en 
couragement  to  persons  engaged  in  armed  hostility  thereto; 
_  3d.  That  he  has  never  sought,  accepted,  or  attempted  to  exercise  the  func 
tions  of  any  office  whatsoever,  under  any  authority,  or  pretended  authority, 
in  hostility  to  the  United  States ; 

4th.  That  he  has  not  yielded  a  voluntary  support  to  any  pretended  gov 
ernment,  authority,  power,  or  constitution,  within  the  United  States,  hostile 
or  inimical  thereto  ;  and, 

5th.  That  he  will  support  and  defend  the  Constitution  of  the  United  States 
against  all  enemies,  foreign  and  domestic,  and  will  bear  true  faith  and  al 
legiance  to  the  same. 

This  last  clause  is  promissory  only,  and  requires  no  consideration.  The 
questions  presented  for  our  determination  arise  from  the  other  clauses. 
These  all  relate  to  past  acts.  Some  of  these  acts  constituted,  when  they 
were  committed,  offences  against  the  criminal  laws  of  the  country;  others 
may,  or  may  not,  have  been  offences,  according  to  the  circumstances  under 
which  they  were  committed,  and  the  motives  of  the  parties.  The  first 
clause  covers  one  form  of  the  crime  of  treason,  and  the  deponent  must 
declare  that  he  has  not  been  guilty  of  this  crime,  not  only  during  the  war  of 
the  rebellion,  but  during  any  period  of  his  life  since  he  has  been  a  citizen. 


APPENDIX.  567 

The  second  clause  goes  beyond  the  limits  of  treason,  and  embraces  not  only 
the  giving  of  aid  and  encouragement  of  a  treasonable  nature  to  a  public 
enemy,  but  also  the  giving  of  assistance  of  any  kind  to  persons  engaged  in 
armed  hostility  to  the  United  States.  The  third  clause  applies  to  the  seek 
ing,  acceptance,  or  exercise  not  only  of  offices  created  for  the  purpose  of 
more  effectually  carrying  on  hostilities,  but  also  of  any  of  those  offices  which  are 
required  in  every  community,  whether  in  peace  or  war,  for  the  administra 
tion  of  justice  and  the  preservation  of  order.  The  fourth  clause  not  only 
includes  those  who  gave  a  cordial  and  active  support  to  the  hostile  govern 
ment,  but  also  those  who  yielded  a  reluctant  obedience  to  the  existing  order, 
established  without  their  co-operation. 

The  statute  is  directed  against  parties  who  have  offended  in  any  of  the 
particulars  embraced  by  these  clauses.  And  its  object  is  to  exclude  them 
from  the  profession  of  the  law,  or  at  least  from  its  practice  in  the  courts  of 
the  United  States.  As  the  oath  prescribed  cannot  be  taken  by  these  parties, 
the  act,  as  against  them,  operates  as  a  legislative  decree  of  perpetual  exclu 
sion.  And  exclusion  from  any  of  the  professions  or  any  of  the  ordinary 
avocations  of  life  for  past  conduct  can  be  regarded  in  no  other  light  than  as 
punishment  for  such  conduct.  The  exaction  of  the  oath  is  the  mode  pro 
vided  for  ascertaining  the  parties  upon  whom  the  act  is  intended  to  operate, 
and  instead  of  lessening,  increases  its  objectionable  character.  All  enact 
ments  of  this  kind  partake  of  the  nature  of  bills  of  pains  and  penalties,  and 
are  subject  to  the  constitutional  inhibition  against  the  passage  of  bills  of  at 
tainder,  under  which  general  designation  they  are  included. 

In  the  exclusion  which  the  statute  adjudges  it  imposes  a  punishment  for 
some  of  the  acts  specified  which  were  not  punishable  at  the  time  they  were 
committed  ;  and  for  other  of  the  acts  it  adds  a  new  punishment  to  that  before 
prescribed,  and  it  is  thus  brought  within  the  further  inhibition  of  the  Con 
stitution  against  the  passage  of  an  ex  post  facto  law.  In  the  case  of  Cum- 
mings  v.  The  State  of  Missouri,  just  decided,  we  have  had  occasion  to 
consider  at  length  the  meaning  of  a  bill  of  attainder  and  of  an  ex  post  facto 
law  in  the  clause  of  the  Constitution  forbidding  their  passage  by  the  States, 
and  it  is  unnecessary  to  repeat  here  what  we  there  said.  A  like  prohibition 
is  contained  in  the  Constitution  against  enactments  of  this  kind  by  Congress  ; 
and  the  argument  presented  in  that  case  against  certain  clauses  of  the  con 
stitution  of  Missouri  is  equally  applicable  to  the  act  of  Congress  under  con 
sideration  in  this  case. 

The  profession  of  an  attorney  and  counsellor  is  not  like  an  office  created 
by  an  act  of  Congress,  which  depends  for  its  continuance,  its  powers,  and  its 
emoluments  upon  the  will  of  its  creator,  and  the  possession  of  which  may  be 
burdened  with  any  conditions  not  prohibited  by  the  Constitution.  Attorneys 
and  counsellors  are  not  officers  of  the  United  States;  they  are  not  elected  or 
appointed  in  the  manner  prescribed  by  the  Constitution  for  the  election  and 
appointment  of  such  officers.  They  are  officers  of  the  court,  admitted  as 
such  by  its  order,  upon  evidence  of  their  possessing  sufficient  legal  learning 
and  fair  private  character.  It  has  been  the  general  practice  in  this  country 
to  obtain  this  evidence  by  an  examination  of  the  parties.  In  this  court  the 
fact  of  the  admission  of  such  officers  in  the  highest  court  of  the  States  to 
which  they  respectively  belong,  for  three  years  preceding  their  application,  is 
regarded  as  sufficient  evidence  of  the  possession  of  the  requisite  legal  learn 
ing,  and  the  statement  of  counsel  moving  their  admission  sufficient  evidence 
that  their  private  and  professional  character  is  fair.  The  order  of  admission 
is  the  judgment  of  the  court  that  the  parties  possess  the  requisite  qualifica 
tions  as  attorneys  and  counsellors,  and  are  entitled  to  appear  as  such  and 
conduct  causes  therein.  From  its  entry  the  parties  become  officers  of  the 


568  APPENDIX. 

court,  and  are  responsible  to  it  for  professional  misconduct.  They  hold  their 
office  during  good  behavior,  and  can  only  be  deprived  of  it  for  misconduct 
ascertained  and  declared  by  the  judgment  of  the  court  after  opportunity  to 
be  heard  has  been  afforded.*  Their  admission  or  their  exclusion  is  not  the 
exercise  of  a  mere  ministerial  power.  It  is  the  exercise  of  judicial  power, 
and  has  been  so  held  in  numerous  cases.  It  was  so  held  by  the  Court  of 
Appeals  of  New  York  in  the  matter  of  the  application  of  Cooper  for  admis- 
sion.f  "  Attorneys  and  counsellors,"  said  that  court,  "  are  not  only  officers 
of  the  court,  but  officers  whose  duties  relate  almost  exclusively  to  proceed 
ings  of  a  judicial  nature.  And  hence  their  appointment  may,  with  propriety, 
be  intrusted  to  the  courts,  and  the  latter  in  performing  this  duty  may  very 
justly  be  considered  as  engaged  in  the  exercise  of  their  appropriate  judicial 
functions." 

In  Ex  Parte  Secombe,^  a  mandamus  to  the  Supreme  Court  of  the  Territory 
of  Minnesota  to  vacate  an  order  removing  an  attorney  and  counsellor  was 
denied  by  this  court,  on  the  ground  that  the  removal  was  a  judicial  act. 
"  We  are  not  aware  of  any  case,"  said  the  court,  "  where  a  mandamus  was 
issued  to  an  inferior  tribunal,  commanding  it  to  reverse  or  annul  its  decision, 
where  the  decision  was  in  its  nature  a  judicial  act  and  within  the  scope  of  its 
jurisdiction  and  discretion."  And  in  the  same  case  the  court  observed,  that 
"  it  has  been  well  settled  by  the  rules  and  practice  of  common  law  courts, 
that  it  rests  exclusively  with  the  court  to  determine  who  is  qualified  to 
become  one  of  its  officers,  as  an  attorney  and  counsellor,  and  for  what  cause 
he  ought  to  be  removed." 

The  attorney  and  counsellor  being,  by  the  solemn  judicial  act  of  the  court, 
clothed  with  his  office,  does  not  hold  it  as  a  matter  of  grace  and  favor.  The 
right  which  it  confers  upon  him  to  appear  for  suitors,  and  to  argue  causes,  is 
something  more  than  a  mere  indulgence,  revocable  at  the  pleasure  of  the 
court,  or  at  the  command  of  the  legislature.  It  is  a  right  of  which  he  can 
only  be  deprived  by  the  judgment  of  the  court,  for  moral  or  professional 
delinquency. 

The  legislature  may  undoubtedly  prescribe  qualifications  for  the  office,  to 
which  he  must  conform,  as  it  may,  where  it  has  exclusive  jurisdiction,  pre 
scribe  qualifications  for  the  pursuit  of  any  of  the  ordinary  avocations  of  life. 
The  question,  in  this  case,  is  not  as  to  the  power  of  Congress  to  prescribe 
qualifications,  but  whether  that  power  has  been  exercised  as  a  means  for  the 
infliction  of  punishment,  against  the  prohibition  of  the  Constitution.  That 
this  result  cannot  be  effected  indirectly  by  a  State  under  the  form  of  creating 
qualifications  we  have  held  in  the  case  of  Cummings  v.  The  State  of  Missouri, 
and  the  reasoning  by  which  that  conclusion  was  reached  applies  equally  to 
similar  action  on  the  part  of  Congress. 

This  view  is  strengthened  by  a  consideration  of  the  effect  of  the  pardon 
produced  by  the  petitioner,  and  the  nature  of  the  pardoning  power  of  the 
President. 

The  Constitution  provides  that  the  President  "  shall  have  power  to  grant 
reprieves  and  pardons  for  offences  against  the  United  States,  except  in  cases 
of  impeachment."  § 

The  power  thus  conferred  is  unlimited,  with  the  exception  stated.  It  ex 
tends  to  every  offence  known  to  the  law,  and  may  be  exercised  at  any  time 
after  its  commission,  either  before  legal  proceedings  are  taken,  or  during 
their  pendency,  or  after  conviction  and  judgment.  This  power  of  the  Presi- 

*  Ex  parte  Heyfron,  7  Howard,  Mississippi,  127;  Fletcher  v.  Daingerfield,  20  Califor 
nia,  430. 
t  22  New  York,  81.  J  19  Howard,  9.  §  Article  II.  §2. 


APPENDIX.  569 


dent  is  not  subject  to  legislative  control.  Congress  can  neither  limit  the 
effect  of  his  pardon,  nor  exclude  from  its  exercise  any  class  of  offenders. 
The  benign  prerogative  of  mercy  reposed  in  him  cannot  be  fettered  by  any 
legislative  restrictions. 

Such  being  the  case,  the  inquiry  arises  as  to  the  effect  and  operation  of  a 
pardon,  and  on  this  point  all  the  authorities  concur.  A  pardon  reaches  both 
the  punishment  prescribed  for  the  offence  and  the  guilt  of  the  offender ;  and 
when  the  pardon  is  full,  it  releases  the  punishment  and  blots  out  of  existence 
the  guilt,  so  that  in  the  eye  of  the  law  the  offender  is  as  innocent  as  if  he  had 
never  committed  the  offence.  If  granted  before  conviction,  it  prevents  any 
of  the  penalties  and  disabilities  consequent  upon  conviction  from  attaching ; 
if  granted  after  conviction,  it  removes  the  penalties  and  disabilities,  and 
restores  him  to  all  his  civil  rights ;  it  makes  him,  as  it  were,  a  new  man,  and 
gives  him  a  new  credit  and  capacity. 

There  is  only  this  limitation  to  its  operation :  it  does  not  restore  offices 
forfeited,  or  property  or  interests  vested  in  others  in  consequence  of  the  con- 
A'iction  and  judgment."  * 

The  pardon  produced  by  the  petitioner  is  a  full  pardon  "  for  all  offences 
by  him  committed,  arising  from  participation,  direct  or  implied,  in  the  rebel 
lion,"  and  is  subject  to  certain  conditions  which  have  been  complied  with. 
The  effect  of  this  pardon  is  to  relieve  the  petitioner  from  all  penalties  and 
disabilities  attached  to  the  offence  of  treason,  committed  by  his  participation 
in  the  rebellion.  So  far  as  that  offence  is  concerned,  he  is  thus  placed  be 
yond  the  reach  of  punishment  of  any  kind.  But  to  exclude  him,  by  reason 
of  that  offence,  from  continuing  in  the  enjoyment  of  a  previously  acquired 
right,  is  to  enforce  a  punishment  for  that  offence  notwithstanding  the  pardon. 
If  such  exclusion  can  be  effected  by  the  exaction  of  an  expurgatory  oath 
covering  the  offence,  the  pardon  may  be  avoided,  and  that  accomplished  in 
directly  which  cannot  be  reached  by  direct  legislation.  It  is  not  within  the 
constitutional  power  of  Congress  thus  to  inflict  punishment  beyond  the  reach 
of  executive  clemency.  From  the  petitioner,  therefore,  the  oath  required  by 
the  act  of  January  24,  1S65,  could  not  be  exacted,  even  if  that  act  were  not 
subject  to  any  other  objection  than  the  one  thus  stated. 

It  follows,  from  the  views  expressed,  that  the  prayer  of  the  petitioner  must 
be  granted. 

The  case  of  R.  H.  Marr  is  similar,  in  its  main  features,  to  that  of  the 
petitioner,  and  his  petition  must  also  be  granted. 

And  the  amendment  of  the  second  rule  of  the  court,  which  requires  the 
oath  prescribed  by  the  act  of  January  24,  1865,  to  be  taken  by  attorneys  and 
counsellors,  having  been  unadvisedly  adopted,  must  be  rescinded. 

And  it  is  so  ordered. 

Mr.  Justice  Miller,  on  behalf  of  himself  and  the  Chief  Justice,  and  Justices 
Swayne  and  Davis,  delivered  the  following  dissenting  opinion,  which  applies 
also  to  the  opinion  delivered  in  dimming  s  v.  Missouri.  (See  supja,  p.  316.) 

I  dissent  from  the  opinions  of  the  court  just  announced. 

It  may  be  hoped  that  the  exceptional  circumstances  which  give  present 
importance  to  these  cases  will  soon  pass  away,  and  that  those  who  make  the 
laws,  both  state  and  national,  will  rind  in  the  conduct  of  the  persons  af 
fected  by  the  legislation  just  declared  to  be  void,  sufficient  reason  to  repeal 
or  essentially  modify  it. 

For  the  speedy  return  of  that  better  spirit,  which  shall  leave  us  no  cause 

*  4  Blackstone's  Commentaries,  402;  G  Bacon's  Abridgment,  tit.  Fardon;  Hawkins, 
book  2,  c.  37,  §§  34  and  54. 

72 


570  APPENDIX. 

for  such  laws,  all  good  men  look  with  anxiety,  and  with  a  hope,  I  trust,  not 
altogether  unfounded. 

But  the  question  involved,  relating,  as  it  does,  to  the  right  of  the  legisla 
tures  of  the  nation,  and  of  the  State,  to  exclude  from  offices  and  places  of 
high  public  trust,  the  administration  of  whose  functions  are  essential  to  the 
very  existence  of  the  government,  those  among  its  own  citizens  who  have 
heen  engaged  in  a  recent  effort  to  destroy  that  government  by  force,  can 
never  cease  to  be  one  of  profound  interest. 

It  is  at  all  times  the  exercise  of  an  extremely  delicate  power  for  this  court 
to  declare  that  the  Congress  of  the  nation,  or  the  legislative  body  of  a  State, 
has  assumed  an  authority  not  belonging  to  it,  and  by  violating  the  Constitu 
tion,  has  rendered  void  its  attempt  at  legislation.  In  the  case  of  an  act  of 
Congress,  which  expresses  the  sense  of  the  members  of  a  co-ordinate  depart 
ment  of  the  government,  as  much  bound  by  their  oath  of  office  as  we  are  to 
respect  that  Constitution,  and  whose  duty  it  is,  as  much  as  it  is  ours,  to  be 
careful  that  no  statute  is  passed  in  violation  of  it,  the  incompatibility  of  the 
act  with  the  Constitution  should  be  so  clear  as  to  leave  little  reason  for 
doubt,  before  we  pronounce  it  to  be  invalid. 

Unable  to  see  this  incompatibility,  either  in  the  act  of  Congress  or  in  the 
provision  of  the  constitution  of  Missouri,  upon  which  this  court  has  just 
passed,  but  entertaining  a  strong  conviction  that  both  were  within  the  com 
petency  of  the  bodies  Avhich  enacted  them,  it  seems  to  me  an  occasion  which 
demands  that  my  dissent  from  the  judgment  of  the  court,  and  the  reasons 
for  that  dissent,  should  be  placed  on  its  records. 

In  the  comments  which  I  have  to  make  upon  these  cases,  I  shall  speak  of 
principles  equally  applicable  to  both,  although  I  shall  refer  more  directly  to 
that  which  involves  the  oath  required  of  attorneys  by  the  act  of  Congress, 
reserving  for  the  close  some  remarks  more  especially  applicable  to  the  oath 
prescribed  by  the  constitution  of  the  State  of  Missouri. 

The  Constitution  of  the  United  States  makes  ample  provision  for  the  es 
tablishment  of  courts  of  justice  to  administer  her  laws,  and  to  protect  and 
enforce  the  rights  of  her  citizens.  Article  III.,  Section  1,  of  that  instrument 
says  that  "the  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  such  inferior  courts  as  the  Congress  may,  from  time  to 
time,  ordain  and  establish."  Section  8  of  Article  I.  closes  its  enumeration 
of  the  powers  conferred  on  Congress  by  the  broad  declaration  that  it  shall 
have  authority  "  to  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers  vested  by 
the  Constitution  in  the  government  of  the  United  States,  or  in  any  depart 
ment  thereof." 

Under  these  provisions,  Congress  has  ordained  and  established  circuit 
courts,  district  courts,  and  territorial  courts ;  and  has,  by  various  statutes, 
fixed  the  number  of  the  judges  of  the  Supreme  Court.  It  has  limited  and 
denned  the  jurisdiction  of  all  these,  and  determined  the  salaries  of  the  judges 
who  hold  them.  It  has  provided  for  their  necessary  officers,  as  marshals, 
clerks,  prosecuting  attorneys,  bailiffs,  commissioners,  and  jurors.  And  by 
the  act  of  1789,  commonly  called  the  Judiciary  Act,  passed  by  the  first  Con 
gress  assembled  under  the  Constitution,  it  is  among  other  things  enacted, 
that  "  in  all  the  courts  of  the  United  States  the  parties  may  plead  and  man 
age  their  causes  personally  ;  or  by  the  assistance  of  such  counsel  or  attorneys 
at  law  as,  by  the  rules  of  the  said  courts  respectively,  shall  be  permitted  to 
manage  and  conduct  causes  therein." 

It  is  believed  that  no  civilized  nation  of  modern  times  has  been  without  a 
class  of  men  intimately  connected  with  the  courts,  and  with  the  administra 
tion  of  justice,  called  variously  attorneys,  counsellors,  solicitors,  proctors,  and 


APPENDIX.  571 

other  terms  of  similar  import.  The  enactment  which  we  have  just  cited 
recognizes  this  body  of  men,  and  their  utility  in  the  judicial  system  of  the 
United  States,  and  imposes  upon  the  courts  the  duty  of  providing  rules,  by 
which  persons  entitled  to  become  members  of  this  class  may  be  permitted  to 
exercise  the  privilege  of  managing  and  conducting  causes  in  these  courts. 
They  are  as  essential  to  the  successful  working  of  the  courts,  as  the  clerks, 
sheriffs,  and  marshals,  and  perhaps  as  the  judges  themselves,  since  no  in 
stance  is  known  of  a  court  of  law  without  a  bar. 

The  right  to  practise  law  in  the  courts  as  a  profession  is  a  privilege  granted 
by  the  law,  under  such  limitations  or  conditions  in  each  State  or  government 
as  the  law-making  power  may  prescribe.  It  is  a  privilege,  and  not  an 
absolute  right.  The  distinction  may  be  illustrated  by  the  difference  between 
the  right  of  a  party  to  a  suit  in  court  to  defend  his  own  cause,  and  the 
right  of  another  to  appear  and  defend  for  him.  The  one,  like  the  right  to 
life,  liberty,  and  the  pursuit  of  happiness,  is  inalienable.  The  other  is  the 
privilege  conferred  by  law  on  a  person  who  complies  with  the  prescribed 
conditions. 

Every  State  in  the  Union,  and  every  civilized  government,  has  laws  by 
which  the  right  to  practise  in  its  courts  may  be  granted,  and  makes  that  right 
to  depend  on  the  good  moral  character  and  professional  skill  of  the  party  on 
whom  the  privilege  is  conferred.  This  is  not  only  true  in  reference  to  the 
first  grant  of  license  to  practise  law,  but  the  continuance  of  the  right  is  made, 
by  these  laws,  to  depend  upon  the  continued  possession  of  those  qualities. 

Attorneys  are  often  deprived  of  this  right,  upon  evidence  of  bad  moral 
character,  or  specific  acts  of  immorality  or  dishonesty,  which  show  that  they 
no  longer  possess  the  requisite  qualifications. 

All  this  is  done  by  law,  either  statutory  or  common ;  and  whether  the  one 
or  the  other,  equally  the  expression  of  legislative  will,  for  the  common  law 
exists  in  this  country  only  as  it  is  adopted  or  permitted  by  the  legislatures, 
or  by  constitutions. 

No  reason  is  perceived  why  this  body  of  men,  in  their  important  relations 
to  the  courts  of  the  nation,  are  not  subject  to  the  action  of  Congress,  to  the 
same  extent  that  they  are  under  legislative  control  in  the  States,  or  in  any 
other  government;  and  to  the  same  extent  that  the  judges,  clerks,  marshals, 
and  other  officsrs  of  the  court  are  subject  to  congressional  legislation.  Hav 
ing  the  power  to  establish  the  courts,  to  provide  for  and  regulate  the  practice 
in  those  courts,  to  create  their  officers,  and  prescribe  their  functions,  can  it  be 
doubted  that  Congress  has  the  full  right  to  prescribe  terms  for  the  admission, 
rejection,  and  expulsion  of  attorneys,  and  for  requiring  of  them  an  oath,  to 
show  whether  they  have  the  proper  qualifications  for  the  discharge  of  their 
duties  ? 

The  act  which  has  just  been  declared  to  be  unconstitutional  is  nothing 
more  than  a  statute  which  requires  of  all  lawyers  who  propose  to  practise  in 
the  national  courts,  that  they  shall  take  the  same  oath  which  is  exacted  of 
every  officer  of  the  government,  civil  or  military.  This  oath  has  two  aspects  ; 
one  which  looks  to  the  past  conduct  of  the  party,  and  one  to  his  future  con 
duct  ;  but  both  have  reference  to  his  disposition  to  support  or  to  overturn 
the  government,  in  whose  functions  he  proposes  to  take  part.  In  substance, 
he  is  required  to  swear  that  he  has  not  been  guilty  of  treason  to  that  govern 
ment  in  the  past,  and  that  he  will  bear  faithful  allegiance  to  it  in  the  future. 

That  fidelity  to  the  government  under  which  he  lives,  a  true  and  loyal 
attachment  to  it,  and  a  sincere  desire  for  its  preservation,  are  among  the 
most  essential  qualifications  which  should  be  required  in  a  lawyer,  seems  to 
me  to  be  too  clear  for  argument.  The  history  of  the  Anglo-Saxon  race 
shows  that,  for  ages  past,  the  members  of  the  legal  profession  have  been 


572  APPENDIX. 

powerful  for  good  or  evil  to  the  government.  They  are,  by  the  nature  of 
their  duties,  the  moulders  of  public  sentiment  on  questions  of  government, 
and  are  every  day  engaged  in  aiding  in  the  construction  and  enforcement  of 
the  laws.  From  among  their  numbers  are  necessarily  selected  the  judges 
who  expound  the  laws  and  the  Constitution.  To  suffer  treasonable  senti 
ments  to  spread  here  unchecked,  is  to  permit  the  stream  on  which  the  life  of 
the  nation  depends  to  be  poisoned  at  its  source. 

In  illustration  of  this  truth,  I  venture  to  affirm,  that  if  all  the  members  of 
the  legal  profession  in  the  States  lately  in  insurrection  had  possessed  the 
qualification  of  a  loyal  and  faithful  allegiance  to  the  government,  we  should 
have  been  spared  the  horrors  of  that  rebellion.  If,  then,  this  qualification  be 
so  essential  in  a  lawyer,  it  cannot  be  denied  that  the  statute  under  considera 
tion  was  eminently  calculated  to  secure  that  result. 

The  majority  of  this  court,  however,  do  not  base  their  decisions  on  the 
mere  absence  of  authority  in  Congress,  and  in  the  States,  to  enact  the  laws 
which  are  the  subject  of  consideration,  but  insist  that  the  Constitution  of  the 
United  States  forbids,  in  prohibitory  terms,  the  passage  of  such  laws,  both  to 
the  Congress  and  to  the  States.  The  provisions  of  that  instrument,  relied 
on  to  sustain  this  doctrine,  are  those  which  forbid  Congress  and  the  States, 
respectively,  from  passing  bills  of  attainder  and  ex  post  facto  laws.  It  is  said 
that  the  act  of  Congress,  and  the  provision  of  the  constitution  of  the  State  of 
Missouri  under  review,  are  in  conflict  with  both  these  prohibitions,  and  are 
therefore  void. 

I  will  examine  this  proposition,  in  reference  to  these  two  clauses  of  the 
Constitution,  in  the  order  in  which  they  occur  in  that  instrument. 

1.  In  regard  to  bills  of  attainder,  I  am  not  aware  of  any  judicial  decision 
by  a  court  of  Federal  jurisdiction  which  undertakes  to  give  a  definition  of 
that  term.  We  are  therefore  compelled  to  recur  to  the  bills  of  attainder 
passed  by  the  English  Parliament,  that  we  may  learn  so  much  of  their 
peculiar  characteristics  as  will  enable  us  to  arrive  at  a  sound  conclusion  as 
to  what  was  intended  to  be  prohibited  by  the  Constitution. 

The  word  attainder  is  derived,  by  Sir  Thomas  Tomlins.  in  his  law  dic 
tionary,  from  the  words  attincta  and  attinctura,  and  is  defined  to  be  "  the 
stain  or  corruption  of  the  blood  of  a  criminal  capitally  condemned  ;  the  im 
mediate  inseparable  consequence  of  the  common  law  on  the  pronouncing  the 
sentence  of  death."  The  effect  of  this  corruption  of  the  blood  was.  that  the 
party  attainted  lost  all  inheritable  quality,  and  could  neither  receive  nor 
transmit  any  property  or  other  rights  by  inheritance. 

This  attainder  or  corruption  of  blood,  as  a  consequence  of  judicial  sentence 
of  death,  continued  to  be  the  law  of  England,  in  all  cases  of  treason,  to  the 
time  that  our  Constitution  was  framed,  and,  for  aught  that  is  known  to  me, 
is  the  law  of  that  country,  on  condemnation  for  treason,  at  this  day. 

Bills  of  attainder,  therefore,  or  acts  of  attainder,  as  they  were  called  after 
they  were  passed  into  statutes,  were  laws  which  declared  certain  persons 
attainted,  and  their  blood  corrupted  so  that  it  had  lost  all  heritable  quality. 
Whether  it  declared  other  punishment  or  not,  it  was  an  act  of  attainder  if  it 
declared  this.  This  also  seems  to  have  been  the  main  feature  at  which  the 
authors  of  the  Constitution  were  directing  their  prohibition  ;  for  after  having, 
in  Article  I.,  prohibited  the  passage  of  bills  of  attainder,  —  in  section  nine  to 
Congress,  and  in  section  ten  to  the  States,  —  there  still  remained  to  the 
judiciary  the  power  of  declaring  attainders.  Therefore,  to  still  further  guard 
against  this  odious  form  of  punishment,  it  is  provided,  in  section  three  of 
Article  III.,  concerning  the  judiciary,  that,  while  Congress  shall  have  power  to 
declare  the  punishment  of  treason,  no  attainder  of  treason  shall  work  cor 
ruption  of  blood  or  forfeiture  except  during  the  life  of  the  person  attainted. 


APPENDIX.  573 

This,  however,  while  it  was  the  chief,  was  not  the  only  peculiarity  of  bills 
of  attainder  which  was  intended  to  be  included  within  the  constitutional  re 
striction.  Upon  an  attentive  examination  of  the  distinctive  features  of  this 
kind  of  legislation,  I  think  it  will  be  found  that  the  following  comprise  those 
essential  elements  of  bills  of  attainder,  in  addition  to  the  one  already  men 
tioned,  which  distinguish  them  from  other  legislation,  and  which  made  them, 
so  obnoxious  to  the  statesmen  who  organized  our  government :  — 

1.  They  were  convictions  and  sentences   pronounced  by  the  legislative 
department  of  the  government,  instead  of  the  judicial. 

2.  The  sentence  pronounced  and  the  punishment  inflicted  were  determined 
by  no  previous  law  or  fixed  rule. 

"  3.  The  investigation  into  the  guilt  of  the  accused,  if  any  such  were  made, 
was  not  necessarily  or  generally  conducted  in  his  presence,  or  that  of  his 
counsel,  and  no  recognized  rule  of  evidence  governed  the  inquiry.* 

It  is  no  cause  for  wonder  that  men  who  had  just  passed  successfully 
through  a  desperate  struggle  in  behalf  of  civil  liberty  should  feel  a  detesta 
tion  for  legislation  of  which  these  were  the  prominent  features.  The  framers 
of  our  political  system  had  a  full  appreciation  of  the  necessity  of  keeping 
separate  and  distinct  the  primary  departments  of  the  government.  Mr. 
Hamilton,  in  the  seventy-eighth  number  of  the  Federalist,  says  that  he. 
agrees  with  the  maxim  of  Montesquieu,  that  "  there  is  no  liberty  if  the  power 
of  judging  be  not  separated  from  the  legislative  and  executive  powers." 
And  others  of  the  ablest  numbers  of  that  publication  are  devoted  to  the  pur 
pose  of  showing  that  in  our  Constitution  these  powers  are  so  justly  balanced 
and  restrained  that  neither  will  probably  be  able  to  make  much  encroach 
ment  upon  the  others.  Nor  was  it  less  repugnant  to  their  views  of  the 
security  of  personal  rights,  that  any  person  should  be  condemned  without  a 
hearing,  and  punished  without  a  law  previously  prescribing  the  nature  and 
extent  of  that  punishment.  They  therefore  struck  boldly  at  all  this  ma 
chinery  of  legislative  despotism,  by  forbidding  the  passage  of  bills  of  attain 
der  and  ex  post  facto  laws,  both  to  Congress  and  to  the  States. 

It  remains  to  inquire  whether,  in  the  act  of  Congress  under  consideration 
(and  the  remarks  apply  with  equal  force  to  the  Missouri  constitution),  there 
is  found  any  one  of  these  features  of  bills  of  attainder ;  and  if  so,  whether 
there  is  sufficient  in  the  act  to  bring  it  fairly  within  the  description  of  that 
class  of  bills. 

It  is  not  claimed  that  the  law  works  a  corruption  of  blood.  It  will,  there 
fore,  be  conceded  at  once,  that  the  act  .does  not  contain  this  leading  feature 
of  bills  of  attainder. 

Nor  am  I  capable  of  seeing  that  it  contains  a  conviction  or  sentence  of  any 
designated  person  or  persons.  It  is  said  that  it  is  not  necessary  to  a  bill  of 
attainder  that  the  party  to  be  affected  should  be  named  in  the  act,  and  the 
attainder  of  the  Earl  of  Kildare  and  his  associates  is  referred  to  as  show 
ing  that  the  act  was  aimed  at  a  class.  It  is  very  true  that  bills  of  attainder 
have  been  passed  against  persons  by  some  description,  when  their  names 
were  unknown.  But  in  such  cases  the  law  leaves  nothing  to  be  done  to  ren 
der  its  operation  effectual,  but  to  identify  those  persons.  Their  guilt,  its 
nature,  and  its  punishment,  are  fixed  by  the  statute,  and  only  their  personal 
identity  remains  to  be  made  out.  Such  was  the  case  alluded  to.  The  act 
declared  the  guilt  and  punishment  of  the  Earl  of  Kildare,  and  all  who  were 
associated  with  him  in  his  enterprise,  and  all  that  was  required  to  insure 
their  punishment  was  to  prove  that  association. 

If  this  were  not  so,  then  the  act  was  mere  brutum  fulmen,  and  the  par- 

*  See  Story  on  the  Constitution,  §  1344. 


574  APPENDIX. 

ties  other  than  the  earl  could  only  be  punished,  notwithstanding  the  act,  by 
proof  of  their  guilt  before  some  competent  tribunal. 

No  person  is  pointed  out  in  the  act  of  Congress,  either  by  name  or  by  de 
scription,  against  whom  it  is  to  operate.  The  oath  is  only  required  of  those 
who  propose  to  accept  an  office  or  to  practise  law ;  and  as  a  prerequisite  to 
the  exercise  of  the  functions  of  the  lawyer,  or  the  officer,  it  is  demanded  of 
all  persons  alike.  It  is  said  to  be  directed,  as  a  class,  to  those  alone  who 
were  engaged  in  the  rebellion ;  but  this  is  manifestly  incorrect,  as  the  oath 
is  exacted  alike  from  the  loyal  and  disloyal,  under  the  same  circumstances, 
and  none  are  compelled  to  take  it.  Neither  does  the  act  declare  any  convic 
tion,  either  of  persons  or  classes.  If  so,  who  are  they,  and  of  what  crime 
are  they  declared  to  be  guilty?  Nor  does  it  pronounce  any  sentence,  or  in 
flict  any  punishment.  If  by  any  possibility  it  can  be  said  to  provide  for  con 
viction  and  sentence,  though  not  found  in  the  act  itself,  it  leaves  the  party 
himself  to  determine  his  own  guilt  or  innocence,  and  pronounce  his  own 
sentence.  It  is  not,  then,  the  act  of  Congress,  but  the  party  interested, 
that  tries  and  condemns.  We  shall  see,  when  we  come  to  the  discussion  of 
this  act  in  its  relation  to  ex  post  facto  laws,  that  it  inflicts  no  punish 
ment. 

A  statute,  then,  which  designates  no  criminal,  either  by  name  or  descrip 
tion,  —  which  declares  no  guilt,  pronounces  no  sentence,  and  inflicts  no  pun 
ishment,  —  can  in  no  sense  be  called  a  bill  of  attainder. 

2.  Passing  now  to  consider  whether  the  statute  is  an  ex  post  facto  law, 
we  find  that  the  meaning  of  that  term,  as  used  in  the  Constitution,  is  a  mat 
ter  which  has  been  frequently  before  this  court,  and  it  has  been  so  well  de 
fined  as  to  leave  no  room  for  controversy.  The  only  doubt  which  can  arise 
is  as  to  the  character  of  the  particular  case  claimed  to  come  within  the  defi 
nition,  and  not  as  to  the  definition  of  the  phrase  itself. 

All  the  cases  agree  that  the  term  is  to  be  applied  to  criminal  causes  alone, 
and  not  to  civil  proceedings.  In  the  language  of  Justice  Story,  in  the  case 
of  Watson  v.  Mercer*  "  Ex  post  facto  laws  relate  to  penal  and  criminal  pro 
ceedings,  which  impose  punishment  and  forfeiture,  and  not  to  civil  proceed 
ings,  which  affect  private  rights  retrospectively."  f 

The  first  case  on  the  subject  is  that  of  Colder  v.  Bull,  and  it  is  the  one  in 
which  the  doctrine  concerning  ex  post  facto  laws  is  most  fully  expounded. 
The  court  divides  all  laws  which  come  within  the  meaning  of  that  clause  of 
the  Constitution  into  four  classes  :  — 

1.  Every  law  that  makes  an  action  done  before  the  passing  of  the  law,  and 
which  was  innocent  when  done,  criminal,  and  punishes  such  action. 

2.  Every  law  that  aggravates  a  crime,  or  makes  it  greater  than  it  was 
when  committed. 

3.  Every  law  that  changes  the  punishment,  and  inflicts  a  greater  punish 
ment  than  the  law  annexed  to  the  crime  when  committed. 

4.  Every  law  that  alters  the  rule  of  evidence,  and  receives  less  or  differ 
ent  testimony  than  the  law  required  at  the  time  of  the  commission  of  the 
offence  to  convict  the  offender. 

Again,  the  court  says,  in  the  same  opinion,  that  "  the  true  distinction  is 
between  ex  post  facto  laws  and  retrospective  laws,"  and  proceeds  to  show 
that,  however  unjust  the  latter  may  be,  they  are  not  prohibited  by  the  Con 
stitution,  while  the  former  are. 

This  exposition  of  the  nature  of  ex  post  facto  laws  has  never  been  de- 

*  8  Peters,  88. 

t  Calder  v.  Bull,  3  Dallas,  380;  Fletcher  v.  Peck,  6  Cranch,  87;  Ogden  v.  Saunders, 
12  Wheaton,  2C6;  Satterlee  v.  Matthewson,  2  Peters,  380. 


APPENDIX.  575 


nied,  nor  has  any  court  or  any  commentator  on  the  Constitution  added  to 
the  classes  of  laws  here  set  forth,  as  coming  within  that  clause  of  the  organic 
laxv,  In  looking  carefully  at  these  four  classes  of  laws,  two  things  strike 
the  mind  as  common  to  them  all :  — 

1.  That  they  contemplate  the    trial   of   some    person  charged  with   an 
offence. 

2.  That  they  contemplate  a  punishment  of  the  person  found  guilty  of  such 
offence. 

Now,  it  seems  to  me  impossible  to  show  that  the  law  in  question  contem 
plates  either  the  trial  of  a  person  for  an  offence  committed  before  its  pas 
sage,  or  the  punishment  of  any  person  for  such  an  offence.  It  is  true  that 
the  act  requiring  an  oath  provides  a  penalty  for  falsely  taking  it.  But  this 
provision  is  prospective,  as  no  one  is  supposed  to  take  the  oath  until  after 
the  passage  of  the  law.  This  prospective  penalty  is  the  only  thing  in  the 
law  which  partakes  of  a  criminal  character.  It  is  in  all  other  respects  a  civil 
proceeding.  It  is  simply  an  oath  of  office,  and  it  is  required  of  all  office 
holders  alike.  As  far  as  I  am  informed,  this  is  the  first  time  in  the  history 
of  jurisprudence  that  taking  an  oath  of  office  has  been  called  a  criminal  pro 
ceeding.  If  it  is  not  a  criminal  proceeding,  then,  by  all  the  authorities,  it  is 
not  an  ex  post  facto  law. 

No  trial  of  any  person  is  contemplated  by  the  act  for  any  past  offence. 
Nor  is  any  party  supposed  to  be  charged  with  any  offence  in  the  only  pro 
ceeding  which  the  law  provides. 

A  person  proposing  to  appear  in  the  court  as  an  attorney  is  asked  to  take 
a  certain  oath.  There  is  no  charge  made  against  him  that  he  has  been  guilty 
of  any  of  the  crimes  mentioned  in  that  oath.  There  is  no  prosecution. 
There  is  not  even  an  implication  of  guilt  by  reason  of  tendering  him  the 
oath,  for  it  is  required  of  the  man  who  has  lost  everything  in  defence  of  the 
government,  and  whose  loyalty  is  written  in  the  honorable  scars  which  cover 
his  body,  the  same  as  of  the  guiltiest  traitor  in  the  land.  His  refusal  to  take 
the  oath  subjects  him  to  no  prosecution.  His  taking  it  clears  him  of  no 
guilt,  and  acquits  him  of  no  charge. 

Where,  then,  is  this  ex  post  facto  law  which  tries  and  punishes  a  man  for 
a  crime  committed  before  it  was  passed  ?  It  can  only  be  found  in  those  elas 
tic  rules  of  construction  which  cramp  the  powers  of  the  Federal  government 
when  they  are  to  be  exercised  in  certain  directions,  and  enlarge  them  when 
they  are  to  be  exercised  in  others.  No  more  striking  example  of  this  could 
be  given  than  the  cases  before  us,  in  one  of  which  the  Constitution  of  the 
United  States  is  held  to  confer  no  power  on  Congress  to  prevent  traitors 
practising  in  her  courts,  while  in  the  other  it  is  held  to  confer  power  on  this 
court  to  nullify  a  provision  of  the  constitution  of  the  State  of  Missouri,  relat 
ing  to  a  qualification  required  of  ministers  of  religion. 

But  the  fatal  vice  in  the  reasoning  of  the  majority  is  in  the  meaning  which 
they  attach  to  the  word  punishment,  in  its  application  to  this  law,  and  in 
its  relation  to  the  definitions  which  have  been  given  of  the  phrase  ex  post 
facto  laws. 

Webster's  second  definition  of  the  word  "  punish "  is  this :  "In  a  loose 
sense,  to  afflict  with  punishment,  &c.,  with  a  view  to  amendment,  to  chas 
ten."  And  it  is  in  this  loose  sense  that  the  word  is  used  by  this  court,  as 
synonymous  with  chastisement,  correction,  loss,  or  suffering  to  the  party 
supposed  to  be  punished,  and  not  in  the  legal  sense,  which  signifies  a  pen 
alty  inflicted  for  the  commission  of  crime. 

And  so,  in  this  sense,  it  is  said  that  whereas  persons  who  had  been  guilty 
of  the  offences  mentioned  in  the  oath  were,  by  the  laws  then  in  force,  only 
liable  to  be  punished  with  death  and  confiscation  of  all  their  property,  they 


576  APPENDIX. 


are  by  a  law  passed  since  these  offences  were  committed,  made  liable  to  the 
enormous  additional  punishment  of  being  deprived  of  the  right  to  practise 
law ! 

The  law  in  question  does  not  in  reality  deprive  a  person  guilty  of  the  acts 
therein  described  of  any  right  which  he  possessed  before ;  for  it  is  equally 
sound  law,  as  it  is  the  dictate  of  good  sense,  that  a  person  who,  in  the  lan 
guage  of  the  act,  has  voluntarily  borne  arms  against  the  government  of  the 
United  States  while  a  citizen  thereof,  or  who  has  voluntarily  given  aid,  com 
fort,  counsel,  or  encouragement  to  persons  engaged  in  armed  hostility  to 
the  government,  has,  by  doing  those  things,  forfeited  his  right  to  appear  in 
her  courts  and  take  part  in  the  administration  of  her  laws.  Such  a  person 
has  exhibited  a  trait  of  character  which,  without  the  aid  of  the  law  in  ques 
tion,  authorizes  the  court  to  declare  him  unfit  to  practise  before  it,  and  to 
strike  his  name  from  the  roll  of  its  attorneys  if  it  be  found  there. 

I  have  already  shown  that  this  act  provides  for  no  indictment  or  other 
charge,  that  it  contemplates  and  admits  of  no  trial,  and  I  now  proceed  to 
show  that  even  if  the  right  of  the  court  to  prevent  an  attorney,  guilty  of  the 
acts  mentioned,  from  appearing  in  its  forum,  depended  upon  the  statute,  that 
still  it  inflicts  no  punishment  in  the  legal  sense  of  that  term. 

"  Punishment,"  says  Mr.  Wharton  in  his  Law  Lexicon,  "  is  the  penalty 
for  transgressing  the  laws ;  "  and  this  is,  perhaps,  as  comprehensive  and  at 
the  same  time  as  accurate  a  definition  as  can  be  given.  Now,  what  law  is 
it  whose  transgression  is  punished  in  the  case  before  us  ?  None  is  referred 
to  in  the  act,  and  there  is  nothing  on  its  face  to  show  that  it  was  intended  as 
an  additional  punishment  for  any  offence  described  in  any  other  act.  A  part 
of  the  matters  of  which  the  applicant  is  required  to  purge  himself  on  oath 
may  amount  to  treason,  but  surely  there  could  be  no  intention  or  desire  to 
inflict  this  small  additional  punishment  for  a  crime  whose  penalty  already 
was  death  and  confiscation  of  property. 

In  fact  the  word  punishment  is  used  by  the  court  in  a  sense  which  would 
make  a  great  number  of  laws,  partaking  in  no  sense  of  a  criminal  character, 
laws  for  punishment,  and  therefore  ex  post  facto. 

A  law,  for  instance,  which  increased  the  facility  for  detecting  frauds  by 
compelling  a  party  to  a  civil  proceeding  to  disclose  his  transactions  under 
oath  would  result  in  his  punishment  in  this  sense,  if  it  compelled  him  to  pay 
an  honest  debt  which  could  not  be  coerced  from  him  before.  But  this  law 
comes  clearly  within  the  class  described  by  this  court  in  Watson  v.  Mercer, 
as  civil  proceedings  which  affect  private  rights  retrospectively. 

Again,  let  us  suppose  that  several  persons  afflicted  with  a  form  of  insanity 
heretofore  deemed  harmless,  shall  be  found  all  at  once  to  be  dangerous  to 
the  lives  of  persons  with  whom  they  associate.  The  State,  therefore,  passes 
a  law  that  all  persons  so  affected  shall  be  kept  in  close  confinement  until 
their  recovery  is  assured.  Here  is  a  case  of  punishment  in  the  sense  used 
by  the  court  for  a  matter  existing  before  the  passage  of  the  law.  Is  it  an 
ex  post  facto  law?  And,  if  not,  in  what  does  it  differ  from  one?  Just  in 
the  same  manner  that  the  act  of  Congress  does,  namely,  that  the  proceeding 
is  civil,  and  not  criminal,  and  that  the  imprisonment  in  the  one  case  and  the 
prohibition  to  practise  law  in  the  other  are  not  punishments  in  the  legal 
meaning  of  that  term. 

The  civil  law  maxim,  "  Nemo  debet  bis  vexari  pro  una  et  eadam  causa" 
has  been  long  since  adopted  into  the  common  law  as  applicable  both  to  civil 
and  criminal  proceedings,  and  one  of  the  amendments  of  the  Constitution 
incorporates  this  principle  into  that  instrument  so  far  as  punishment  affects 
life  or  limb.  It  results  from  this  rule  that  no  man  can  be  twice  lawfully 
punished  for  the  same  offence.  We  have  already  seen  that  the  acts  of  which 


APPENDIX.  577 

the  party  is  required  to  purge  himself  on  oath  constitute  the  crime  of  trea 
son.  Now,  if  the  judgment  of  the  court  in  the  cases  before  us,  instead  of 
permitting  the  parties  to  appear  without  taking  the  oath,  had  been  the  other 
way,  here  would  have  been  the  case  of  a  person  who,  on  the  reasoning  of  the 
majority,  is  punished  by  the  judgment  of  this  court  for  the  same  acts  which 
constitute  the  crime  of  treason. 

Yet,  if  the  applicant  here  should  afterwards  be  indicted  for  treason  on 
account  of  these  same  acts,  no  one  will  pretend  that  the  proceedings  here 
could  be  successfully  pleaded  in  bar  of  that  indictment.  But  why  not? 
Simply  because  there  is  here  neither  trial  nor  punishment  within  the  legal 
meaning  of  these  terms. 

I  maintain  that  the  purpose  of  the  act  of  Congress  was  to  require  loyalty 
as  a  qualification  of  all  who  practise  law  in  the  national  courts.  The  ma 
jority  say  that  the  purpose  was  to  impose  a  punishment  for  past  acts  of  dis 
loyalty. 

In  pressing  this  argument  it  is  contended  by  the  majority  that  no  require 
ment  can  be  justly  said  to  be  a  qualification  which  is  not  attainable  by 
all,  and  that  to  demand  a  qualification  not  attainable  by  all  is  a  punish 
ment. 

The  Constitution  of  the  United  States  provides  as  a  qualification  for  the 
offices  of  President  and  Vice-President  that  the  person  elected  must  be  a 
native-born  citizen.  Is  this  a  punishment  to  all  those  naturalized  citizens 
who  can  never  attain  that  qualification  ?  The  constitutions  of  nearly  all  the 
States  require  as  a  qualification  for  voting  that  the  voter  shall  be  a  white 
male  citizen.  Is  this  a  punishment  for  all  the  blacks,  who  can  never  become 
white  ? 

Again,  it  was  a  qualification  required  by  some  of  the  State  constitutions, 
for  the  office  of  judge,  that  the  person  should  not  be  over  sixty  years  of  age. 
To  a  very  large  number  of  the  ablest  lawyers  in  any  State  this  is  a  qualifi 
cation  to  which  they  can  never  attain,  for  every  year  removes  them  farther 
away  from  the  designated  age.  Is  it  a  punishment  ? 

The  distinguished  commentator  on  American  law,  and  chancellor  of  the 
State  of  New  York,  was  deprived  of  that  office  by  this  provision  of  the  con 
stitution  of  that  State  ;  and  he  was  thus,  in  the  midst  of  his  usefulness,  not 
only  turned  out  of  office,  but  he  was  forever  disqualified  from  holding  it 
again,  by  a  law  passed  after  he  had  accepted  the  office. 

'  This  is  a  much  stronger  case  than  that  of  a  disloyal  attorney  forbid  by  law 
to  practise  in  the  courts  ;  yet  no  one  ever  thought  the  law  was  ex  post  facto 
in  the  sense  of  the  Constitution  of  the  United  States. 

Illustrations  of  this  kind  could  be  multiplied  indefinitely,  but  they  are  un 
necessary. 

The  history  of  the  time  when  this  statute  was  passed,  —  the  darkest  hour 
of  our  great  struggle,  —  the  necessity  for  its  existence,  the  humane  charac 
ter  of  the  President  who  signed  the  bill,  and  the  face  of  the  law  itself,  all 
show  that  it  was  purely  a  qualification,  exacted  in  self-defence,  of  all  who 
took  part  in  administering  the  government  in  any  of  its  departments,  and 
that  it  was  not  passed  for  the  purpose  of  inflicting  punishment,  however 
merited,  for  past  offences. 

I  think  I  have  now  shown  that  the  statute  in  question  is  within  the  legis 
lative  power  of  Congress  in  its  control  over  the  courts  and  their  officers,  and 
that  it  was  not  void  as  being  either  a  bill  of  attainder  or  an  ex  post  facto  law. 

If  I  am  right  on  the  questions  of  qualification  and  punishment,  that  dis 
cussion  disposes  also  of  the  proposition,  that  the  pardon  of  the  President 
relieves  the  party  accepting  it  of  the  necessity  of  taking  the  oath,  even  if  the 
law  be  valid. 

73 


578  APPENDIX. 

I  am  willing  to  concede  that  the  presidential  pardon  relieves  the  party 
from  all  the  penalties,  or,  in  other  words,  from  all  the  punishment,  which  the 
law  inflicted  for  his  offence.  But  it  relieves  him  from  nothing  more.  If  the 
oath  required  as  a  condition  to  practising  law  is  not  a  punishment,  as  I  think 
I  have  shown  it  is  not,  then  the  pardon  of  the  President  has  no  effect  in  re 
leasing  him  from  the  requirement  to  take  it.  If  it  is  a  qualification  which 
Congress  had  a  right  to  prescribe  as  necessary  to  an  attorney,  then  the 
President  cannot,  by  pardon  or  otherwise,  dispense  with  the  law  requiring 
such  qualification. 

This  is  not  only  the  plain  rule  as  between  the  legislative  and  executive 
departments  of  the  government,  but  it  is  the  declaration  of  common  sense. 
The  man  who,  by  counterfeiting,  by  theft,  by  murder,  or  by  treason,  is  ren 
dered  unfit  to  exercise  the  functions  of  an  attorney  or  counsellor  at  law,  may 
be  saved  by  the  executive  pardon  from  the  penitentiary  or  the  gallows,  but 
is  not  thereby  restored  to  the  qualifications  which  are  essential  to  admission 
to  the  bar.  No  doubt  it  will  be  found  that  very  many  persons  among  those 
who  cannot  take  this  oath,  deserve  to  be  relieved  from  the  prohibition  of  the 
law ;  but  this  in  no  wise  depends  upon  the  act  of  the  President  in  giving  or 
refusing  a  pardon.  It  remains  to  the  legislative  power  alone  to  prescribe 
under  what  circumstances  this  relief  shall  be  extended. 

In  regard  to  the  case  of  Cummings  v.  The  State  of  Missouri,  allusions 
have  been  made,  in  the  course  of  argument,  to  the  sanctity  of  the  ministerial 
office,  and  to  the  inviolability  of  religious  freedom  in  this  country. 

But  no  attempt  has  been  made  to  show  that  the  Constitution  of  the  United 
States  interposes  any  such  protection  between  the  State  governments  and 
their  own  citizens.  Nor  can  anything  of  this  kind  be  shown.  The  Federal 
Constitution  contains  but  two  provisions  on  this  subject.  One  of  these  for 
bids  Congress  to  make  any  law  respecting  the  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof.  The  other  is,  that  no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  office  or  public  trust  under 
the  United  States. 

No  restraint  is  placed  by  that  instrument  on  the  action  of  the  States  ;  but 
on  the  contrary,  in  the  language  of  Story,*  "  the  whole  power  over  the  sub 
ject  of  religion  is  left  exclusively!  o  the  State  governments,  to  be  acted 
upon  according  to  their  own  sense  of  justice  and  the  State  constitutions." 

If  there  ever  was  a  case  calling  upon  this  court  to  exercise  all  the  power 
on  this  subject  which  properly  belongs  to  it,  it  was  the  case  of  the  Rev.  B. 
Permoli. 

An  ordinance  of  the  first  municipality  of  the  city  of  New  Orleans  imposed" 
a  penalty  on  any  priest  who  should  officiate  at  any  funeral,  in  any  other 
church  than  the  obituary  chapel.  Mr.  Permoli,  a  Catholic  priest,  performed 
the  funeral  services  of  his  church  over  the  body  of  one  of  his  parishioners, 
enclosed  in  a  coffin,  in  the  Roman  Catholic  Church  of  St.  Augustine.  For 
this  he  was  fined,  and  relying  upon  the  vague  idea  advanced  here,  that  the 
Federal  Constitution  protected  him  in  the  exercise  of  his  holy  functions,  he 
brought  the  case  to  this  court. 

But  hard  as  that  case  was,  the  court  replied  to  him  in  the  following  lan 
guage  :  "  The  Constitution  [of  the  United  States]  makes  no  provision  for 
protecting  the  citizens  of  the  respective  States  in  their  religious  liberties  ; 
this  is  left  to  the  State  constitutions  and  laws  ;  nor  is  there  any  inhibition 
imposed  by  the  Constitution  of  the  United  States  in  this  respect  on  the 
States."  f  Mr.  Permoli's  writ  of  error  was,  therefore,  dismissed  for  want  of 
jurisdiction. 

*  Commentaries  on  the  Constitution,  §  1878.  -f  3  Howard,  589. 


APPENDIX.  579 


In  that  case  an  ordinance  of  a  mere  local  corporation  forbade  a  priest,  loyal 
to  his  government,  from  performing  what  he  believed  to  be  the  necessary 
rites  of  his  church  over  the  body  of  his  departed  friend.  This  court  said  it 
could  give  him  no  relief. 

In  this  case  the  constitution  of  the  State  of  Missouri,  the  fundamental 
law  of  the  people  of  that  State,  adopted  by  their  popular  vote,  declares  that 
no  priest  of  any  church  shall  exercise  his  ministerial  functions,  unless  he  will 
show,  by  his  own  oath,  that  he  has  borne  a  true  allegiance  to  his  govern 
ment.  This  court  now  holds  this  constitutional  provision  void,  on  the 
ground  that  the  Federal  Constitution  forbids  it.  I  leave  the  two  cases  to 
speak  for  themselves. 

In  the  discussion  of  these  cases  I  have  said  nothing,  on  the  one  hand,  of 
the  great  evils  inflicted  on  the  country  by  the  voluntary  action  of  many  of 
those  persons  affected  by  the  laws  under  consideration  ;  nor,  on  the  other 
hand,  of  the  hardships  which  they  are  now  suffering,  much  more  as  a  conse 
quence  of  that  action  than  of  any  laws  which  Congress  can  possibly  frame. 
But  I  have  endeavored  to  bring  to  the  examinatio-n  of  the  grave  questions 
of  constitutional  law  involved  in  this  inquiry  those  principles  alone  which 
are  calculated  to  assist  in  determining  what  the  law  is,  rather  than  what,  in 
my  private  judgment,  it  ought  to  be. 


THE  STATE  OF  MISSISSIPPI  v.  JOHNSON,  4  Wallace,  S.  C.  Rep.  497. 
The  Chief  Justice  delivered  the  opinion  of  the  court. 

A  motion  was  made,  some  days  since,  in  behalf  of  the  State  of  Missis 
sippi,  for  leave  to  file  a  bill  in  the  name  of  the  State,  praying  this  court 
perpetually  to  enjoin  and  restrain  Andrew  Johnson,  President  of  the  United 
States,  and  E.  O.  C.  Ord,  general  commanding  in  the  District  of  Mississippi 
and  Arkansas,  from  executing,  or  in  any  manner  carrying  out,  certain  acts 
of  Congress  therein  named. 

The  acts  referred  to  are  those  of  March  2  and  March  23,  1867,  com 
monly  known  as  the  Reconstruction  Acts. 

The  Attorney  General  objected  to  the  leave  asked  for,  upon  the  ground 
that  no  bill  which  makes  a  President  a  defendant,  and  seeks  an  injunction 
against  him  to  restrain  the  performance  of  his  duties  as  President,  should 
be  allowed  to  be  filed  in  this  court. 

This  point  has  been  fully  argued,  and  we  will  now  dispose  of  it. 

We  shall  limit  our  inquiry  to  the  question  presented  by  the  objection, 
without  expressing  any  opinion  on  the  broader  issues  discussed  in  argument, 
whether,  in  any  case,  the*  President  of  the  United  States  may  be  required, 
by  the  process  of  this  court,  to  perform  a  purely  ministerial  act  under  a 
positive  law,  or  may  be  held  amenable,  in  any  case,  otherwise  than  by  im 
peachment  for  crime. 

The  single  point  which  requires  consideration  is  this :  Can  the  President 
be  restrained  by  Injunction  from  carrying  into  effect  an  act  .of  Congress 
alleged  to  be  unconstitutional  ? 

It  is  assumed  by  the  counsel  for  the  State  of  Mississippi,  that  the  Presi 
dent,  in  the  execution  of  the  Reconstruction  Acts,  is  required  to  perform  a 
mere  ministerial  duty.  In  this  assumption  there  is,  we  think,  a  confounding 
of  the  terms  ministerial  and  executive,  which  are  by  no  means  equivalent  in 
import. 

A  ministerial  duty,  the  performance  of  which  may,  in  proper  cases,  be 


580  APPENDIX. 


required  of  the  head  of  a  department,  by  judicial  process,  is  one  in  respect 
to  which  nothing  is  left  to  discretion.  It  is  a  simple,  definite  duty,  arising 
under  conditions  admitted  or  proved  to  exist,  and  imposed  by  law. 

The  case  of  Marbury  v.  Madison,  Secretary  of  State*  furnishes  an  illus 
tration.  A  citizen  had  been  nominated,  confirmed,  and  appointed  a  justice 
of  the  peace  for  the  District  of  Columbia,  and  his  commission  had  been 
made  out,  signed,  and  sealed.  Nothing  remained  to  be  done  except  de 
livery,  and  the  duty  of  delivery  was  imposed  by  law  on  the  Secretary  of 
State.  It  was  held  that  the  performance  of  this  duty  might  be  enforced  by 
mandamus  issuing  from  a  court  having  jurisdiction. 

So,  in  the  case  of  Kendall,  Postmaster  General,  v.  Stockton  &  Stokesrf  an 
act  of  Congress  had  directed  the  Postmaster  General  to  credit  Stockton  & 
Stokes  with  such  sums  as  the  Solicitor  of  the  Treasury  should  find  due  to 
them ;  and  that  officer  refused  to  credit  them  with  certain  sums,  so  found 
due.  It  was  held  that  the  crediting  of  this  money  was  a  mere  ministerial 
duty,  the  performance  of  which  might  be  judicially  enforced. 

In  each  of  these  cases  nothing  was  left  to  discretion.  There  was  no  room 
for  the  exercise  of  judgment.  The  law  required  the  performance  of  a  single 
specific  act ;  and  that  performance,  it  was  held,  might  be  required  by 
mandamus. 

Very  different  is  the  duty  of  the  President  in  the  exercise  of  the  power  to 
see  that  the  laws  are  faithfully  executed,  and  among  these  laws  the  acts 
named  in  the  bill.  By  the  first  of  these  acts  he  is  required  to  assign  gen 
erals  to  command  in  the  several  military  districts,  and  to  detail  sufficient 
military  force  to  enable  such  officers  to  discharge  their  duties  under  the  law. 
By  the  supplementary  act,  other  duties  are  imposed  on  the  several  com 
manding  generals,  and  these  duties  must  necessarily  be  performed  under 
the  supervision  of  the  President  as  commander-in-chief.  The  duty  thus 
imposed  on  the  President  is  in  no  just  sense  ministerial.  It  is  purely 
executive  and  political. 

An  attempt  on  the  part  of  the  judicial  department  of  the  government  to 
enforce  the  performance  of  such  duties  by  the  President  might  be  justly 
characterized,  in  the  language  of  Chief  Justice  Marshall,  as  "  an  absurd  and 
excessive  extravagance." 

It  is  true  that  in  the  instance  before  us  the  interposition  of  the  court  is 
not  sought  to  enforce  action  by  the  Executive  under  constitutional  legisla 
tion,  but  to  restrain  such  action  under  legislation  alleged  to  be  unconstitu 
tional.  But  we  are  unable  to  perceive  that  this  circumstance  takes  the  case 
out  of  the  general  principles  wrhich  forbid  judicial  interference  writh  the 
exercise  of  Executive  discretion. 

It  was  admitted  in  the  argument  that  the  application  now  made  to  us  is 
without  a  precedent ;  and  this  is  of  much  weight  against  it. 

Had  it  been  supposed  at  the  bar  that  this  court  would,  in  any  case,  in 
terpose,  by  injunction,  to  prevent  the  execution  of  an  unconstitutional  act 
of  Congress,  it  can  hardly  be  doubted  that  applications  with  that  object 
would  have  been  heretofore  addressed  to  it. 

Occasions  have  not  been  wanting. 

The  constitutionality  of  the  act  for  the  annexation  of  Texas  was  vehe 
mently  denied.  It  made  important  and  permanent  changes  in  the  relative 
importance  of  States  and  sections,  and  was  by  many  supposed  to  be  preg 
nant  with  disastrous  results  to  large  interests  in  particular  States.  But  no 
one  seems  to  have  thought  of  an  application  for  an  injunction  against  the 
execution  of  the  act  by  the  President. 

*  1  Crunch,  i:*7.  f  12  Peters,  527. 


APPENDIX.  581 


And  yet  it  is  difficult  to  perceive  upon  what  principle  the  application  now 
before  us  can  be  allowed,  and  similar  applications  in  that  and  other  cases 
have  been  denied. 

The  fact  that  no  such  application  was  ever  before  made  in  any  case  indi 
cates  the  general  judgment  of  the  profession  that  no  such  application  should 
be  entertained. 

It  will  hardly  be  contended  that  Congress  can  interpose,  in  any  case,  to 
restrain  the  enactment  of  an  unconstitutional  law ;  and  yet  how  can  the 
right  to  judicial  interposition  to  prevent  such  an  enactment,  when  the  pur 
pose  is  evident  and  the  execution  of  that  purpose  certain,  be  distinguished,  in 
principle,  from  the  right  to  such  interposition  against  the  execution  of  such 
a  law  by  the  President  ? 

The  Congress  is  the  legislative  department  of  the  government;  the 
President  is  the  executive  department.  Neither  can  be  restrained  in  its 
action  by  the  judicial  department ;  though  the  acts  of  both,  when  performed, 
are,  in  proper  cases,  subject  to  its  cognizance. 

The  impropriety  of  such  interference  will  be  clearly  seen  upon  considera 
tion  of  its  possible  consequences. 

Suppose  the  bill  filed  and  the  injunction  prayed  for  allowed.  If  the 
President  refuse  obedience,  it  is  needless  to  observe  that  the  court  is  with 
out  power  to  enforce  its  process.  If,  on  the  other  hand,  the  President 
complies  with  the  order  of  the  court  and  refuses  to  execute  the  acts  of 
Congress,  is  it  not  clear  that  a  collision  may  occur  between  the  executive 
and  legislative  departments  of  the  government  ?  May  not  the  House  of 
Representatives  impeach  the  President  for  such  refusal  ?  And  in  that  case 
could  this  court  interfere,  in  behalf  of  the  President,  thus  endangered  by 
compliance  "with  its  mandate,  and  restrain  by  injunction  the  Senate  of  the 
United  States  from  sitting  as  a  court  of  impeachment  ?  Would  the  strange 
spectacle  be  offered  to  the  public  world  of  an  attempt  by  this  court  to  arrest 
proceedings  in  that  court  ? 

These  questions  answer  themselves. 

It  is  true  that  a  State  may  file  an  original  bill  in  this  court.  And  it  may 
be  true,  in  some  cases,  that  such  a  bill  may  be  filed  against  the  United 
States.  But  we  are  fully  satisfied  that  this  court  has  no  jurisdiction  of  a 
bill  to  enjoin  the  President  in  the  performance  of  his  official  duties,  and 
that  no  such  bill  ought  to  be  received  by  us. 

It  has  been  suggested  that  the  bill  contains  a  prayer  that,  if  the  relief 
sought  cannot  be  had  against  Andrew  Johnson,  as  President,  it  may  be 
granted  against  Andrew  Johnson  as  a  citizen  of  Tennessee.  But  it  is  plain 
that  relief  as  against  the  execution  of  an  act  of  Congress  by  Andrew  John 
son,  is  relief  against  its  execution  by  the  President.  A  bill  praying  an 
injunction  against  the  execution  of  an  act  of  Congress  by  the  incumbent  of 
the  presidential  office  cannot  be  received,  whether  it  describes  him  as  Presi 
dent  or  as  a  citizen  of  a  State. 

The  motion  for  leave  to  file  the  bill  is,  therefore,  denied. 


582  APPENDIX. 


THE  PETERHOFF,  5  Wallace,  60.     (1866.) 
Political  status  of  persons  residing  in  rebel  States  during  the  war. 

Two  other  questions  remain  to  be  disposed  of.  The  first  of  these  relates 
to  the  political  status  of  Redgate,  one  of  the  owners  of  the  cargo.  It  was 
insisted,  in  the  argument  for  the  government,  that  this  person  was  an 
enemy,  and  that  the  merchandise  owned  by  him  was  liable  to  capture  and 
confiscation  as  enemy's  property. 

It  appears  that  he  was  by  birth  an  Englishman  ;  that  he  became  a  citi 
zen  of  the  United  States ;  that  he  resided  in  Texas  at  the  outbreak  of  the 
rebellion  ;  made  his  escape ;  became  a  resident  of  Matamoras  ;  had  been 
engaged  in  trade  there,  not  wholly  confined,  probably,  to  Mexico ;  and  was 
on  his  return  from  England  with  a  large  quantity  of  goods,  only  a  small 
part  of  which,  however,  was  his  own  property,  with  the  intention  of  estab 
lishing  a  mercantile  house  in  that  place. 

It  has  been  held,  by  this  court,  that  persons  residing  in  the  rebel  States 
at  any  time  during  the  civil  war,  must  be  considered  as  enemies,  during 
such  residence,  without  regard  to  their  personal  sentiments  or  dispositions.* 
But  this  has  never  been  held  in  respect  to  persons  faithful  to  the  Union,  who 
have  escaped  from  those  States,  and  have  subsequently  resided  in  the  loyal 
States,  or  in  neutral  countries.  Such  citizens  of  the  United  States  lost 
no  rights  as  citizens  by  reason  of  temporary  and  constrained  residence  in 
the  rebellious  portion  of  the  country.  And  to  this  class  Redgate  seems  to 
have  belonged.  lie  cannot  therefore  be  regarded  as  an  enemy.  If  his 
property  was  liable  to  seizure  at  all,  on  account  of  his  political  character,  it 
was  as  property  of  a  citizen  of  the  United  States  proceeding  to  a  State  in 
insurrection.  But  we  see  no  sufficient  ground  for  distinguishing  that  por 
tion  of  the  cargo  owned  by  him,  as  to  destination,  from  any  other  portion. 


THE  GRAY  JACKET,  5  Wallace,  369.     (1867.) 

This  was  a  case  of  maritime  capture  of  a  vessel  and  cargo,  seized  flagrante 
delicto,  while  running  the  blockade  then  declared  against  our  southern 
coast.  The  court  say,  — 

The  liability  of  the  property  is  irrespective  of  the  status  domicilii,  guilt 
or  innocence  of  the  owner.  If  it  come  from  enemy  territory,  it  bears  the 
impress  of  enemy  property.  If  it  belong  to  a  loyal  citizen  of  the  country 
of  the  captors,  it  is,  nevertheless,  as  much  liable  to  condemnation  as  if 
owned  by  a  citizen  or  subject  of  the  hostile  country,  or  by  the  hostile  gov 
ernment  itself.  The  only  qualification  of  these  rules  is,  that  where,  upon 
the  breaking  out  of  hostilities,  or  as  soon  after  as  possible,  the  owner 
escapes  with  such  property  as  he  can  take  with  him,  or  in  good  faith  thus 
early  removes  his  property,  with  the  view  of  putting  it  beyond  the  dominion 
of  the  hostile  power,  the  property  in  such  cases  is  exempt  from  the  liability 
which  would  otherwise  attend  it.  Such,  with  this  limitation,  is  the  settled 
law  of  this  and  of  all  other  prize  courts. 

*  Prize  Cases,  2  Black.  666,  087,  688;  The  Venice,  2  Wallace,  258;  Mrs,  Alexander's  Cot 
ton,  Id.  404. 


APPENDIX. 


583 


THE  WILLIAM  BAGALEY,  5  Wallace,  402-409.  (1866.) 
The  steamer  and  cargo  were  captured  as  prize  of  war  on  the  18th  day 
of  July,  1863  ;  and  having  been  duly  libelled  and  prosecuted  as  such,  in  the 
District  Court  on  the  1 7th  day  of  August  following,  they  were  both  con 
demned  as  forfeited  to  the  United  States.  Monition  was  duly  published, 
but  no  one  appeared  as  claimant,  either  for  the  steamer  or  cargo.  Direc 
tions  of  the  decree  of  condemnation  were,  that  the  steamer  and  cargo,  after 
ten  days'  public  notice,  should  be  sold  by  the  marshal,  and  that  the  pro 
ceeds  of  the  sale  should  be  deposited  in  the  registry  of  the  court,  for  distri 
bution  according  to  law.  Return  of  the  marshal  shows  that  the  notice  was 
duly  given,  and  that  the  sale  was  made  as  directed  by  the  decree.  Pro 
ceeds  of  the  sale  were  paid  to  the  marshal,  but  before  the  amount  was  actu 
ally  deposited  in  the  registry  of  the  court  the  appellant  filed  his  petition  of 
intervention,  claiming  one  sixth  of  the  proceeds,  upon  the  ground  that  he 
was  the  true  and  lawful  owner  of  one  sixth  part  of  the  vessel  and  cargo. 
Allegations  of  the  petition  of  intervention  were,  in  substance  and  effect,  as 
follows  :  — 

1.  That  the  petitioner  was,  and  for  many  years  had  been,  a  citizen  of 
the  State  of  Indiana;  that  at  the  breaking  out  of  the  rebellion  he  was  a 
member  of  the  firm  of  Cox,  Brainard  &  Co.,  at  Mobile,  Alabama  ;  that  the 
partners  of  the  firm,  as  such,  were  the  sole  owners  of  the  steamer  and  cargo  ; 
and  that  he  had  never  parted  with  his  share,  or  in  any  way  transferred  his 
interest  in  the  partnership. 

2.  That  the  steamer,  after  the  rebellion  broke  out,  to  the  time  of  the 
capture,  was  contiunally  in  the  waters  of  the  rebellious  States,  and  under 
the  control  and  management  of  those  engaged  in  the  rebellion,  which  ren 
dered  it  impracticable  and  unlawful  for  him  to  proceed  to  the  place  where 
the  steamer  was,  or  to  exercise  any  control  over  the  steamer,  or  any  part  of 
the  partnership  property. 

3.  That  he  was,  and  always  had  been,  a  true  and  loyal  citizen  ;  _that  he 
had  never  given  any  aid,  encouragement,  or  assistance  to  the  rebellion,  and 
that  he  had  no  connection  with,  or  knowledge  of,  the  unlawful  voyage  of  the 
steamer,  on  account  of  which  she  was  condemned  as  lawful  prize. 

4.  That  some  court  of  the  Confederate  States,  so  called,  at  some  time  in 
the  year  1862,  had  condemned  and  confiscated  his  interest  in  the  partner 
ship*;  but  he  averred  that  the  decree  was  wholly  nugatory  and  void,  and  that 
his  interest  in  the  steamer  and  cargo  had  never  been  extinguished  or  de- 
Basing  his  claim  upon  these  allegations  of  fact,  he  prayed  that  he^might 

be  paid,  out  of  the  proceeds  of  the  sale,  one  sixth  of  the  amount  required  to 
be  paid  into  the  registry  of  the  court. 

Exceptions  were  filed  to  the  petition  of  intervention,  but  they  were  over 
ruled  by  the  court,  and  the  District  Attorney  appeared  and  admitted  that 
all  the  facts  therein  alleged  were  true.  Parties  were  heard  as  upon  an 
agreed  statement,  and  the  District  Court  entered  a  decree  that  the  interven 
tion  and  claim  of  the  petitioner  be  rejected  and  dismissed  with  costs.  Ap 
peal  was  taken  by  the  intervenor  from  that  decree,  and  he  now  seeks  to  re 
verse  it,  upon  the  ground  that  he,  as  owner  of  one  sixth  part  of  the  steamer 
and  cargo,  is  entitled  to  one  sixth  of  the  proceeds  of  the  sale. 

1.  Captors  contend  that  the  steamer  and  cargo  were  both  rightfully  con 
demned  as  enemy  property,  and  also  for  breach  of  blockade.  Appellant 
denies  the  entire  proposition  as  respects  his  interest  in  the  captured  proper 
ty,  and  insists  that  the  one  sixth  of  the  same  belonging  to  him^  cannot 
properly  be  condemned  on  either  ground,  because  he  was  never  domiciled  in 


584  APPENDIX. 

the  rebellious  States,  and  because  he  never  employed  the  property,  _  either 
actually  or  constructively,  in  any  illegal  trade  with  the  enemy,  or  in  any 
attempt  to  break  the  blockade. 

The  projected  voyage  of  the  steamer  was  from  Mobile  to  Havana,  and  the 
master  testifies  that  she  sailed  under  the  Confederate  flag.  Proofs  show  that 
she  left  her  anchorage  in  the  night  time,  and  that  she  was  captured,  as 
alleged  in  the  libel,  after  a  brisk  chase  by  several  of  our  blockading  squad 
ron,  more  than  two  hundred  miles  from  the  port  of  departure.  When  cap 
tured,  she  had  on  board  a  permanent  register,  issued  at  Mobile  under  Con 
federate  authority,  and  which  described  her  owners  as  trustees  of  a  certain 
association,  and  citizens  of  the  Confederate  States. 

The  testimony  of  the  master  showed  that  the  cargo,  which  consisted  of  seven 
hundred  bales  of  cotton,  three  thousand  two  hundred  staves,  and  one  hun 
dred  and  twenty-five  barrels  of  turpentine,  was  consigned  to  parties  in 
Havana,  and  that  the  shipment  was  for  the  benefit  of  owners  residing  at  the 
home  port.  Except  an  informal  manifest,  the  steamer  had  no  papers  on 
board  relating  to  the  cargo,  and  the  master  testified  that  she  carried  none 
for  the  consignee,  "  for  fear  of  being  captured."  He  was  appointed  by  the 
trustees,  and  he  also  testified  that  his  instructions  were  to  elude  the  block 
ading  vessels  if  possible,  but  not  to  resist  in  case  he  was  unable  to  escape. 
The  ship's  company  consisted  of  thirty  men,  and  all  the  officers  and  crew, 
with  one  exception,  were  citizens  of  the  enemy  country.  Direct  admission  is 
made  by  the  master,  in  his  testimony,  that  he  stole  out  of  the  harbor,  and 
that  the  steamer  and  cargo  were  captured  for  breach  of  blockade.  Such  an 
admission  was  hardly  necessary  to  establish  the  charge,  as  every  fact  and 
circumstance  in  the  case  tended  to  the  same  conclusion.  Five  sixths  of  the 
steamer  and  cargo  were  confessedly  enemy  property,  and  the  whole  adven 
ture  was  projected  and  prosecuted  for  the  benefit  of  resident  enemy  owners. 
None  of  these  facts  are  controverted  by  the  appellant ;  but  he  insists  that, 
inasmuch  as  he  was  domiciled  in  a  loyal  State,  and  had  no  connection  with 
the  adventure  or  the  voyage,  his  interest  cannot  properly  be  held  liable  to 
capture. 

2.  War  necessarily  interferes  with  the  pursuits  of  commerce  and  naviga 
tion,  as  the  belligerent  parties  have  a  right,  under  the  laws  of  nations,  to 
make  prize  of  the  ships,  goods,  and  effects  of  each  other  upon  the  high  seas. 
Property  of  the  enemy,  if  at  sea,  may  be  captured  as  prize  of  war ;  but  the 
property  of  a  friend  cannot  be  lawfully  captured,  provided  he  observes  his 
neutrality.  Public  war,  duly  declared  or  recognized  as  such  by  the  war- 
making  power,  imports  a  prohibition  by  the  sovereign,  to  the  subjects  or 
citizens,  of  all  commercial  intercourse  and  correspondence  with  citizens  or 
persons  domiciled  in  the  enemy  country.*  Neutral  friends,  or  even  citizens, 
who  remain  in  the  enemy  country  after  the  declaration  of  war,  have  im 
pressed  upon  them  so  much  of  the  character  of  enemies,  that  trading  with 
them  becomes  illegal,  and  all  property  so  acquired  is  liable  to  confiscation.! 

Part  owners  of  ships  are  seldom  partners,  in  the  commercial  sense,  because 
no  one  can  become  the  partner  of  another  without  his  consent,  and  because, 
if  they  acquire  title  by  purchase,  they  usually  buy  distinct  shares,  at  different 
times  and  under  different  conveyances ;  and  even  when  they  are  the  build 
ers,  they  usually  make  separate  contributions  for  the  purpose.  Generally 
speaking,  they  are  only  tenants  in  common ;  but  the  steamer,  in  this  case, 
belonged  to  the  partnership,  and  throughout  the  rebellion,  to  the  time  of 

*  Jeclcer  v.  Montgomery,  13  Howard,  498. 

t  The  Hoop,  1  Robinson,  196;  Maclachlan  on  Shipping,  473;  The  Rapid,  8  Cranch,  155; 
Potts  v.  Bell,  8  Term,  561 ;  Wheaton's  International  Law,  by  Lawrence,  547. 


APPENDIX.  585 

capture,  was  controlled  and  managed  by  the  partners  in  the  enemy 
country.* 

Even  where  the  part-owners  of  a  ship  are  tenants  in  common,  the  major 
ity  in  interest  appoint  the  master  and  control  the  ship,  unless  they  have 
surrendered  that  right  by  agreeing  in  the  choice  of  a  ship's  husband  as 
managing  owner.f 

Admiralty,  however,  in  certain  cases,  if  no  ship's  husband  has  been  ap 
pointed,  will  interfere  to  prevent  the  majority  from  employing  the  ship 
against  the  will  of  the  minority  without  first  entering  into  stipulation  to 
bring  back  the  ship  or  pay  the  value  of  their  shares.  But  the  dissenting 
owners,  in  such  a  case,  bear  no  part  of  the  expenses  of  the  voyage  objected 
to,  and  are  entitled  to  no  part  of  the  profits. 

Such  are  the  general  rules  touching  the  employment  and  control  of  ships ; 
but  unless  the  co-owners  agree  in  the  choice  of  a  managing  owner,  or  the 
dissenting  minority  go  into  admiralty,  the  majority  in  interest  control  the 
employment  of  the  ship,  and  appoint  the  master.  J  Tenants  in  common  of 
a  ship  can  only  sell  their  own  respective  shares,  but  where  the  ship  belongs 
to  a  partnership,  one  partner  may  sell  the  whole  ship.  § 

3.  Proclamation  of  blockade  was  made  by  the  President  on  the  nineteenth 
day  of  April,  1861,  and  on  the  thirteenth  day  of  July,  in  the  same  year,  Con 
gress  passed  a  law  authorizing  the  President  to  interdict,  by  proclamation, 
all  trade  and  intercourse  between  the  inhabitants  of  the  States  in  insurrec 
tion  and  the  rest  of  the  United  States.  ||  The  provision  of  the  sixth  section 
of  the  act  is,  that  after  fifteen  days  from  the  issuing  of  such  proclamation,  any 
ship  or  vessel  belonging  in  whole  or  part  to  any  citizen  or  inhabitant  of  a 
State  or  part  of  a  State,  whose  inhabitants  shall  be  so  declared  to  be  in  insur 
rection,  if  found  at  sea  or  in  the  port  of  any  loyal  State,  may  be  forfeited. 
Reference  is  made  to  those  provisions,  as  showing  that  our  citizens  were 
duly  notified  that  Congress,  as  well  as  the  President,  had  recognized  the 
undeniable  fact  that  civil  war  existed  between  the  constitutional  government 
and  the  Confederate  States ;  and  that  seasonable  notice  was  given  to  all 
whose  interests  could  be  affected,  and  that  ample  opportunity  and  every 
facility  were  extended  to  them,  which  could  properly  be  granted,  to  enable 
them  to  withdraw  their  effects  from  the  States  in  rebellion,  or  to  dispose  of 
such  interests  as  in  the  nature  of  things  could  not  be  removed. 

Open  war  had  existed  between  the  belligerents  for  more  than  two  years 
before  the  capture  in  this  case  was  made,  and  yet  there  is  not  the  slightest 
evidence  in  the  record  that  the  appellant  ever  attempted,  or  manifested  any 
desire,  to  withdraw  his  effects  in  the  partnership,  or  to  dispose  of  his  inter 
est  in  the  steamer.  The  effect  of  the  war  was  to  dissolve  the  partnership, 
and  the  history  of  that  period  furnishes  plenary  evidence  that  ample  time 
was  afforded,  to  every  loyal  citizen  desiring  to  improve  it,  to  withdraw  all 
such  effects  and  dispose  of  all  such  interests.  "  Partnership  with  a  for 
eigner,"  says  Maclachlan,  "  is  dissolved  by  the  same  event  which  makes  him 
an  alien  enemy ;  "  and  Judge  Story  says,  that  "  there  is,  in  such  cases,  an 
utter  incompatibility,  created  by  operation  of  law,  between  the  partners,  as 
to  their  respective  rights,  duties,  and  obligations,  both  public  and  private, 

*  Helme  v.  Smith,  7  Bingham,  709. 

t  Smith's  Mercantile  Law,  6th  ed.  197. 

|  Maude  and  Pollock  on  Shipping,  67,  72. 

§  3  Kent's  Com.  llth  ed.  15-i ;  Wright  v.  Hunter,  \  East.  20;  Lamb  v.  Durant,  12  Mass.  54. 

||  12  Stat.  at  Large,  1258,  257. 

74 


586  APPENDIX, 

and  therefore  that  a  dissolution  must  necessarily  result  therefrom,  indepen 
dent  of  the  will  or  acts  of  the  parties."  * 

Executory  contracts  with  an  alien  enemy,  or  even  with  a  neutral  if  they 
cannot  be  performed  except  in  the  way  of  commercial  intercourse  with  the 
enemy,  are  ipso  facto  dissolved  by  the  declaration  of  war,  which  operates  to 
that  end,  and  for  that  purpose  with  a  force  equivalent  to  that  of  an  act  of 
Congress.f 

The  duty  of  a  citizen  when  war  breaks  out,  if  it  be  a  foreign  war,  and  he  is 
abroad,  is  to  return  without  delay ;  and  if  it  be  a  civil  war,  and  he  is  a  resi 
dent  in  the  rebellious  section,  he  should  leave  it  as  soon  as  practicable,  and 
adhere  to  the  regular  established  government.  Domicile,  in  the  law  of 
prize,  becomes  an  important  consideration,  because  every  person  is  to  be 
considered  in  such  proceedings  as  belonging  to  that  country  where  he  has 
his  domicile,  whatever  may  be  his  native  or  adopted  country.  J 

4.  Personal  property,  except  such  as  is  the  produce  of  the  hostile  soil,  fol 
lows,  as  a  general  rule,  the  rights  of  the  proprietor ;  but  if  it  is  suffered  to 
remain  in  the  hostile  country  after  war  breaks  out,  it  becomes  impressed 
with  the  national  character  of  the  belligerent  where  it  is  situated.  Promp 
titude  is  therefore  justly  required  of  citizens  resident  in  the  enemy  country, 
or  having  personal  property  there,  in  changing  their  domicile,  severing  those 
business  relations,  or  disposing  of  their  effects,  as  matter  of  duty  to  their  own 
government,  and  as  tending  to  weaken  the  enemy. 

The  presumption  of  the  law  of  nations  is  against  one  who  lingers  in  the 
enemy's  country,  and  if  he  continues  there  for  much  length  of  time,  without 
satisfactory  explanations,  he  is  liable  to  be  considered  as  remorant,  or  guilty 
of  culpable  delay,  and  an  enemy.  § 

Ships  purchased  from  an  enemy  by  such  persons,  though  claimed  to  be 
neutral,  are  for  the  same  reasons  liable  to  condemnation,  unless  the  delay  of 
the  purchaser*  in  changing  his  domicile  is  fully  and  satisfactorily  explained. 
Omission  of  the  appellant  to  dispose  of  his  interest  in  the  steamer,  and  his 
failure  to  withdraw  his  effects  from  the  rebellious  State,  are  attempted  to 
be  explained  and  justified,  because  the  same  were,  as  alleged  in  the  petition, 
confiscated  during  the  rebellion,  under  the  authority  of  the  rebel  govern 
ment.  More  than  a  year,  however,  had  elapsed,  after  the  proclamation  of 
blockade  was  issued,  before  any  such  pretended  confiscation  took  place. 
Members  of  a  commercial  firm  domiciled  in  the  enemy  country,  whether 
citizens  or  neutrals,  after  having  been  guilty  of  such  delay  in  disposing  of 
their  interests  or  in  withdrawing  their  effects,  cannot,  when  the  property  so 
domiciled  and  so  suffered  to  remain  is  captured  as  prize  of  war,  turn  round 
and  defeat  the  rights  of  the  captors,  by  proving  that  their  own  domicile  was 
that  of  a  friend,  or  that  they  had  no  connection  with  the  illegal  voyage. 

Property  suffered  so  to  remain  has  impressed  upon  it  the  character  of 
enemy  property,  and  may  be  condemned  as  such  or  for  breach  of  blockade. 
Prize  courts  usually  apply  these  rules  where  the  partnership  effects  of  citi 
zens  or  neutrals  is  suffered  to  remain  in  the  enemy  country,  under  the  con 
trol  and  management  of  the  other  partners,  who  are  enemies.  But  there 
are  other  rules  applicable  to  ships  owned  under  such  circumstances  which 
must  not  be  overlooked  in  this  case. 

*  Maclachlan  on  Shipping,  475 ;  Story  on  Partnership,  §  316;  Griswoldv.  Waddington, 
15  Johnson,  57;  same  case,  16  Id.  438. 

t  Exposito  v.  Bowden,  7  Ellis  and  Blackburne,  763. 

J  The  Vigilantia,  1  C.  Robinson,  1;  The  Venus,  8  Crunch,  288;  3  Phillimore's  Interna 
tional  Law,  128. 

§  Maclachlan  on  Shipping,  480;  The  Ocean,  5  Kobinson,  91;  The  Venus,  8  Cranch,  278. 


APPENDIX.  587 


MAURAN  v.  INSURANCE  COMPANY,  6  Wallace,  14.     (1867-8.) 
The  chief  point  in  this  case  is  well  stated  by  Mr.  Wallace,  the  excellent 
Reporter  of  the  Supreme  Court,  thus :  — 

"  A  taking  of  a  vessel  by  the  naval  forces  of  a  now  extinct  rebellious  con 
federation,  whose  authority  was  unlawful,  and  whose  proceedings  in  over 
throwing  the  former  government  were  wholly  illegal  and  void,  and  which 


bellious  confederation  was  at  the  time  sufficiently  in  possession  of  the  attri 
butes  of  government  to  be  regarded  as  in  fact  the  ruling  or  supreme  power 
of  the  country  over  which  its  pretended  jurisdiction  extended,  and  if  it  had 
been  substantially,  though  informally,  treated  as  a  belligerent  by  our  gov- 
ernme'nt.  Accordingly,  a  seizure  by  a  vessel  of  the  late  so-called  Confede 
rate  States  of  America,  for  their  benefit,  was  a  capture  within  the  terms  of 
such  a  warranty." 

The  court  say,  — 

The  Constitution  of  the  United  States,  which  is  the  fundamental  law  of 
each  and  all  of  them,  not  only  afforded  no  countenance  or  authority  for  these 
proceedings  (the  organization  of  a  rebel  confederacy),  but  they  were  in  every 
part  of  them  in  express  disregard  and  violation  of  it.  Still  it  cannot  be 
denied  but  that,  by  use  of  these  unlawful  and  unconstitutional  means,  a 
government  in  fact  was  erected  greater  in  territory  than  many  of  the  old 
governments  of  Europe,  complete  in  the  organization  of  all  its  parts,  con 
taining  within  its  limits  more  than  eleven  millions  of  people,  and  of  sufficient 
resources  in  men  and  money  to  carry  on  a  civil  war  of  unexampled  dimen 
sions,  and  during  all  which  time  the  exercise  of  many  belligerent  rights  were 
either  conceded  to  it,  or  were  acquiesced  in  by  the  supreme  government,  such 
as  the  treatment  of  captives,  both  on  land  and  sea,  as  prisoners  of  war ;  the 
exchange  of  prisoners ;  their  vessels  captured  recognized  as  prizes  of  war, 
and  dealt  with  accordingly ;  their  property  seized  on  land  referred  to  the 
judicial  tribunal  for  adjudication ;  their  ports  blockaded,  and  the  blockade 
maintained  by  a  suitable  force,  and  duly  notified  to  neutral  powers,  the  same 
as  in  open  and  public  war.  We  do  not  inquire  whether  these  were  rights 
conceded  to  the  enemy  by  the  laws  of  war  among  civilized  nations,  or  were 
dictated  by  humanity  to  mitigate  the  vindictive  passions  growing  out  of  a 
civil  conflict.  We  refer  to  the  conduct  of  the  war  as  a  matter  of  fact,  for  the 
purpose  of  showing  that  the  so-called  Confederate  States  were  in  the  pos 
session  of  many  of  the  highest  attributes  of  government,  sufficiently  so  to  be 
regarded  as  in  possession  of  the  country  ;  and  hence  captures  under  its  com 
mission  were  among  those  excepted  out  of  the  policy  by  the  warranty  of  the 
insured.  We  could  greatly  extend  the  opinion  upon  this  branch  of  the 
case,  by  considerations  in  support  of  the  above  view  ;  but  the  question  has 
undergone  very  learned  and  able  examinations  in  several  of  the  State 
courts  deservedly  of  the  highest  eminence,  and  which  have  arrived  at  the 
same  conclusion,  and  to  which  we  refer  as  rendering  further  examination 
unnecessary.* 

Chief  Justice  and  Swayne,  J.,  dissenting. 

*  Dole  v.  New  England  Mutual  Insurance  Company,  6  Allen,  373;  Fifield  v.  In 
surance  Company,  47  Tcun.  State.  166;  Dole  v.  Merchants'  Mutual  Insurance  Company, 
51  Maine,  464. 


588  APPENDIX. 


STATE  OF  GEORGIA  v.  STANTON,  6  Wallace,  63. 
In  this  case  the  counsel  for  the  State  of  Georgia  said,  — 

The  Attorney  General  quite  understates  the  effects  of  these  Reconstruction 
Acts.  Their  actual  effect  is  to  restrain  at  once  the  holding  of  any  election 
within  the  State  for  any  officers  of  the  present  State  government  by  any  of 
the  State  authorities ;  to  direct  all  future  elections  in  the  State  to  be  held 
under  the  direction  of,  and  by  officers  appointed  by,  the  military  commander  ; 
and  that  all  persons  of  certain  classes  described  shall  be  the  electors  per 
mitted  to  vote  at  such  election.  It  is,  therefore,  an  immediate  paralysis  of 
all  the  power  and  authority  of  the  State  government  by  military  force;  a 
plain  setting  aside  of  the  present  State  government,  and  depriving  it  of  the 
necessary  means  of  continuing  its  existence.  It  is  substituting  in  its  place 
a  new  government,  created  under  a  new  constitution,  and  elected  by  a  new 
and  independent  class  of  electors. 

What  is  the  effect  of  this  upon  the  State  government  and  upon  the  State 
now  existing?  The  same,  just,  as  if  in  the  case  of  a  private  corporation 
(which  could  only  keep  up  its  existence  by  regular  periodical  elections  by 
its  stockholders),  —  the  persons  having  an  interest  in  it,  the  owners  of  its 
franchise,  and  the  right  to  perpetuate  it,  were  forbidden  to  vote,  deprived 
of  the  right,  —  or  a  large  number  of  them  were  so  forbidden  and  deprived ; 
and  a  mass  of  persons,  having  no  right  whatever,  were  introduced.  This  is 
a  direct  attack  upon  the  constitution  of  the  corporation  in  the  case  sup 
posed  ;  a  direct  attack  upon  the  constitution  and  fundamental  law  of  the 
State  in  the  case  before  the  court. 

To  grant  an  injunction  in  such  a  case  is  manifestly  within  the  jurisdiction 
of  equity.* 

The  grievance  of  which  Georgia  complains  is  analogous ;  a  proceeding  to 
divest  her  of  her  legally  and  constitutionally  established  and  guaranteed 
existence  as  a  body  politic  and  a  member  of  the  Union. 

To  explain.  By  the  fundamental  law  of  Georgia,  as  we  know,  its  con 
stituent  body  is,  and  always  has  been,  composed  of  the  "  free  white  male 
citizens  of  the  State,  of  the  age  of  twenty-one  years,  who  have  paid  all  taxes 
which  may  have  been  required  of  them,  and  which  they  have  had  an  oppor 
tunity  of  paying  agreeably  to  law  for  the  year  preceding  the  election,  being 
citizens  of  the  United  States,  and  having  resided  six  months  either  in  the 
district  or  county,  and  two  years  within  the  State."  f 

A  State  is  a  complete  body  of  free  persons  united  together  for  their  com 
mon  benefit,  to  enjoy  peaceably  what  is  their  own,  and  to  do  justice  to 
others.  It  is  an  artificial  person.  It  has  its  affairs  and  its  interests.  It 
has  its  rules.  It  has  its  rights.^  A  republican  State,  in  every  political, 
legal,  constitutional,  and  judicial  sense,  as  well  under  the  law  of  nations  as 
the  laws  and  usages  of  the  mother  country,  is  composed  of  those  persons 
who,  according  to  its  existing  constitution  or  fundamental  law,  are  the 
constituent  body.  All  other  persons  within  its  territory,  or  socially  belong 
ing  to  its  people,  as  a  human  society,  are  subject  to  its  laws,  and  may  justly 
claim  its  protection ;  but  they  are  not,  in  contemplation  of  law,  any  portion 
of  the  body  politic  known  and  recognized  as  the  State.  On  principle  it 

*  Ward  v.  The  Society  of  Attorneys,  1  Colly er's  New  Cases  in  Chancery,  379;  Simp 
son  v.  Westminster  Palace  Hotel  Company,  8  Clark  (House  of  Lord's  Cases),  717;  Dodye 
v.  Woolsey,  18  Howard,  .341. 

t  Constitution  of  Georgia,  1865,  Art.  V.  Sec.  1. 

$  Chisholm  v.  Georgia,  per  Wilson,  J.,  2  Dallas,  45. 


APPENDIX.  589 


must  be  quite  clear  that  the  body  politic  is  composed  of  those  who  by  the 
fundamental  law  are  the  source  of  all  political  power,  or  official  or  govern 
mental  authority.  Dorr's  revolutionary  government  in  Rhode  Island  was  an 
attempted  departure  from  it.*  In  that  case  the  precise  thing  was  done  by 
Dorr  and  his  adherents  which  these  acts  in  the  present  instance  seek  to 
perform. 

There  was  a  State  government  in  the  hands  of  a  portion  of  the  people  of 
that  State,  constituting  its  whole  electoral  body.  Dorr  was  of  opinion, 
and  his  adherents  supported  him  in  it,  that  a  greater  number  of  electors 
ought  to  be  admitted ;  and  he  thereupon  undertook,  by  spontaneous  meet 
ing,  to  erect  an  independent  State  government.  He  failed  in  so  doing.  The 
court  decided  that  it  was  no  government,  but  that  the  original  chartered 
government  which  there  existed  was  the  legitimate  and  lawful  government, 
and  consequently  Dorr  failed.  The  same  reasons  would  lead  to  the  over 
throw  of  these  acts  of  Congress.  The  State  has  a  right  to  maintain  its 
constitution  or  political  association ;  and  it  is  its  duty  to  do  what  may  be 
necessary  to  preserve  that  association ;  and  no  external  power  has  a  right 
to  interfere  with  or  disturb  it.f  In  Rhode  Island  v.  Massachusetts^  this 
court  says,  that  "  the  members  of  the  American  family  [meaning  the  States] 
possess  ample  means  of  defence  under  the  Constitution,  which  we  hope  ages 
to  come  will  verify."  What  means  of  defence  under  the  Constitution  is 
possessed  by  Georgia,  if  this  suit  cannot  be  maintained  ? 

The  change  proposed  by  the  two  acts  of  Congress  in  question  is  funda 
mental  and  vital.  The  acts  seize  upon  a  large  portion  —  whites  —  of  the  con 
stituent  body,  and  exclude  them  from  acting  as  members  of  the  State.  It 
violently  thrusts  into  the  constituent  body,  as  members  thereof,  a  multiude 
of  individuals  —  negroes  —  not  entitled  by  the  fundamental  law  of  Georgia 
to  exercise  political  powers.  The  State  is  to  be  Africanized.  This  will 
work  a  virtual  extinction  of  the  existing  body  politic,  and  the  creation  of  a 
new,  distinct,  and  independent  body  politic,  to  take  its  place  and  enjoy  its 
rights  and  property.  &uch  new  State  would  be  formed,  not  by  the  free  will 
or  consent  of  Georgia  or  her  people,  nor  by  the  assent  or  acquiescence  of 
her  existing  government  or  magistracy,  but  by  external  force.  Instead  of 
keeping  the  guarantee  against  a  forcible  overthrow  of  its  government  by 
foreign  invaders  or  domestic  insurgents,  this  is  destroying  that  very  govern 
ment  by  force.  Should  this  be  done,  and  the  magistracy  of  the  new  State 
be  placed  in  possession,  the  very  recognition  of  them  by  the  Congress  and 
President,  who  thus  set  them  up,  would  be  a  conclusive  determination,  as 
between  such  new  government  and  the  State  government  now  existing. 
This  court  would  be,  then,  bound  to  recognize  the  latter  as  lawful.§  Inde 
pendently  of  this  principle,  the  forced  acquiescence  of  the  people,  under  the 
pressure  of  military  power,  would  soon  work  a  virtual  extinction  of  the  ex 
isting  political  society.  Each  aspect  of  the  case  shows  that  the  impending 
evil  will  produce  consequences  fatal  to  the  continuance  of  the  present  State, 
and,  consequently,  that  the  injury  would  be  irreparable. 

The  court  say,  — 

The  distinction  (between  political  and  judicial  matters)  results  from  the 
organization  of  the  government  into  three  great  departments,  executive, 
legislative,  and  judicial,  and  from  the  assignment  and  limitation  of  the 

*  Luther  v.  Borden,  7  Howard,  1. 

t  Vattel's  Law  of  Nations,  book  1,  chap.  2,  §  16;  Id.  book  2,  chap.  4,  §57. 

J  12  Peters,  745. 

§  Buther  v.  Borden,  7  Howard,  1. 


500 


APPENDIX, 


powers  of  ^cach  by  the  Constitution.  Tho  judicial  power  is  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  us  Congress  may  ordain  and 
establish  j  the  political  power  of  the  government  in  the  other  two  depart 
ments.  The  distinction  between  judicial  and  political  power  is  so  generally 
acknowledged,  in  the  jurisprudence  both  of  England  and  of  this  country, 
that  we^  need  do  no  more  than  refer  to  some  of  the  authorities  on  the  sub 
ject.  They  are  all  in -one  direction. 

Naftob  of  Varnatic  v.  The  AW  I  mile  Company,  1  Vesey,  Jr.,  37o-39.'J. 
S.  C.  2  Id.  fiO-OO. 

Venn  v.  Lord  Hal/imorc,  1  Vescy,  '110-7. 

New  York  v.  (bnncclicut,  4  Dallas,  4-6. 

The  Cherokee  Nation  v.  Georyia,  r>  Peters,  1,  20,  29,  ,'JO,  f>l,  75. 

The  Mate  of  Rhode,  Island  v.  The  Ktatc  of  Massachuxdts,  12  Ib.  G57, 

IJy  the  second  section  of  the  third  article  of  the  Constitution,  "  the  ju 
dicial  power  extends  to  all  cases  in  law  and  equity  arising  under  the  Consti 
tution,  the  laws  of  thn  United  States,  &c.,  and,  as  applicable  to  the  case  in 

hand,  to  controversies  between   a  State   and  citizens  of  another  State," 

which  controversies,  under  the  Judiciary  Act,  may  be  brought,  in  the 
first  instance,  before  this  court  in  the  exercise  of  its  original  jurisdiction  ; 
ami  we>  agree,  that  the  bill  filed  presents  a  case  which,  if  it  be  the  subject 
of  judicial  cognizance,  would,  in  form,  come  under  a  familiar  head  of  equity 
jurisdiction,  that  is,  jurisdiction  to  grant  an  injunction  to  restrain  a  party 
frmn  a  wrong  or  injury  to  the  rights  of  another,  when  the  danger,  actual  or 
threatened,  is  irreparable,  or  the  remedy  at  law  inadequate  ;  but  according 
to  the  course  of  proceeding  under  this  head,  in  equity,  in  order  to  entitle 
the  party  to  the  remedy,  a  case  must  be  presented  appropriate  for  the  exer 
cise  of  judicial  power;  the  rights  in  danger,  as  we  have  seen,  must  be  rights 
of  persons  or  property,  not  merely  political  rights,  which  do  not  belong  to 
the  jurisdiction  of  a  court  either  in  law  or  equity. 

The  remaining  question  on  this  branch  of  our  inquiry  is  whether,  in  view 
of  the  principles  above  stated,  and  which  we  have  endeavored  to  explain,  a 
case  is  made  out  in  the  bill  of  which  this  court  can  take  judicial  cognizance. 
In  looking  into  it,  it  will  be  seen  that  we  are  called  upon  to  restrain  the 
defendants,  who  represent  the  executive  authority  of  the  government,  from 
carrying  into  execution  certain  acts  of  Congress,  inasmuch  as  such  execu 
tion  would  annul,  and  totally  abolish,  the  existing  State  government  of 
Georgia,  and  establish  another  and  different  one  in  its  place  ;  in  other 
words,  would  overthrow  and  destroy  the  corporate  existence  of  the  State, 
by  depriving  it  of  ^  all  means  and  instrumentalities  whereby  its  existence 
might,  and  otherwise  would,  be  maintained.  That  these  both,  as  stated  in 
the  body  of  the  bill  and  in  the  prayers  for  relief,  call  for  the  judgment  of 
the  court  upon  political  questions  and  upon  rights  not  of  persons  and  prop 
erty,  but  of  n  political  character,  will  hardly  be  denied.  For  the  rights,  for 
the  protection  of  which  our  authority  is  invoked,  are  the  rights  of  sover 
eignty  of  political  jurisdiction,  of  government,  of  corporate  existence  as  a 
State,  with  all  its  constitutional  powers  and  privileges.  No  case  of  private 
rights  or  private  property  infringed  or  in  danger  of  actual  or  threatened  in 
fringement,  is  presented  by  tin-  hill  j,,  ;i  judicial  form  for  the  judgment  of 
the  court. 

Having  arrived  at  the  conclusion  that  this  court,  for  the  reasons  above 
stated,  possess  no  jurisdiction  over  the  subject-matter  presented  in  the  bill 
for  relief,  it  is  unimportant  to  examine  the  question  as  it  respects  jurisdic 
tion  over  the  parties  defendants. 


APPENDIX.  591 


HENRY    P.    COOLIDGK  v.   COLUMBUS   OUTIIRIK. 

Circuit  Court  of  the  United  States,   Southern  District  of  Ohio,  October 

Term,  18(58. 

Svvayne,  J.    This  is  an  action  of  trover,  brought  to  recover  the  value  of 
the  cotton  mentioned  in  the  plaintiff's  declaration.     The  defendant  pleaded  , 
the  general  issue.     The  parties  submitted  the  cans-  to  the  Court  —  waiving 
the  intervention  of  a  jury. 

According  to  the  statute  regulating  the  practice  in  such  cases,  "  the  find 
ing  of  the  court  upon  the  facts  —  which  finding  may  be  either  general  or 
special  — nhall  have  the  same  Hl'ert  as  the  finding  of  a  jury  " 


important  one  in  the  principle 
proper  to  find  the  facts  specially,  in  order  that  the  decision  of  this  court  may 
be  reviewed  more  conveniently  by  the  higher  court,  if  such  a  review  shall 
be  desired  by  the  party  against  whom  our  judgment  is  about  to  be  given. 

The  facts  are  accordingly  found  upon  the  evidence  before  us,  as  fol 
lows  :  — 

1.  On  the  12th  of  July,  18(52,  General  Samuel  II.  Curtis,  commanding  an 
army  of  the  United  States,  took  military  possession  of  the  town  of  Helena, 
in  the   State  of  Arkansas.     That  State  was  then   in  rebellion  against  the 
United  States. 

2.  The  cotton  was  all  raised  upon  farms  belonging  to  General  Gideon  J. 
Pillow,  who  was,  at  the  time  of  the  seizure  of  the  cotton,  in  the  military 
service  of  the  rebel  government.     The  farms  were  in  the  immediate  vicinity 
of  Helena. 

,'j.  General  Curtis  ordered  the  cotton  in  controversy  to  be  seized  and 
brought  into  Helena;  and  it  was  seized  and  brought  there  accordingly.  The 
wagons  conveying  it  were  protected  by  troops  detailed  for  that  purpose-. 

4.  He  sold  and  delivered  the  cotton  to  the  defendant  and  one  William 
W.  Babcock,  jointly.     There  were  two  sales  —  one  of  two  hundred  bales, 
and  one  of  thirty-six  bales.     Both  sales  were  made  at  Helena,  on  the  2()th 
of  July,  1802.     The  agreed  price  was  fourteen  and  a  half  cents  per  pound. 
The  average  weight  of  the  bales  was  four  hundred  pounds. 

5.  Subsequently,  the  defendant,  Guthrie,  delivered  eighty-two  bales  of 
the  cotton  to  Alfred  Spink,  at  Memphis,  pursuant  to  the  order  of  a  quarter 
master  of  the  army.     Spink  paid  Guthrie  forty-five  dollars  per  bale  for  tho 
cotton,  so  delivered.     Fourteen  bales  more  of  the  cotton  were  taken  by  a 
gunboat,  to  be  used,  as  was  alleged,  for  calking  purposes.     The  residue, 
consisting  of  one  hundred  and  forty  bales,  was  shipped   by  the  defendant  to 
the  city  of  New  York,  and  there  sold. 

0.  General  Curtis  alleged,  at  the  time  of  the  sei/ure  and  sale  of  the  cotton, 
that  his  object  was  to  apply  the  proceeds  to  the  support  of  the  starving 
negro  population  in  the  neighborhood  of  his  camp.  A  small  part  of  the 
proceeds  were  so  applied,  lie  received  full  payment  for  the  cotton  at  the 
contract  price.  He  never  icport.ed  the  seizure;  and  sale  to  the  authorities 
at  Washington,  nor  to  any  other  public  officer,  and  died  without  having 
accounted  for  the  proceeds  to  any  one. 

7.  When  the  defendants  bought  the  cotton,  it  had  been  for  several  days 
at  Helena  in  the  military  possession  of  General  Curtis.  It  was  in  a  dam 
aged  condition.  The  navagation  of  the  Mississippi  was  at  that  time 
attended  with  peril  to  life  and  property.  Babeoek  was  killed  at  a  landing 


592  APPENDIX. 

twenty  miles  below  Memphis,  by  guerrillas,  on  the  20th  of  October,  1862. 
The  value  of  the  cotton  at  the  time  and  place  of  purchase  was  fourteen  and 
a  half  cents  per  pound  —  what  the  defendant  and  Babcock  paid  for  it.  The 
whole  quantity  of  the  cotton  purchased  and  received  by  the  defendant  and 
Babcock  was  ninety-four  thousand  four  hundred  pounds.  The  legal  title 
and  ownership  of  the  cotton  at  the  time  of  its  seizure  by  General  Curtis  was 
in  the  plaintiff,  Coolidge.  He  was  a  resident  of  Arkansas,  but  was  in  no  wise 
engaged  in  the  rebellion.  All  the  facts  relating  to  the  cotton  were  known 
to  the  defendant  and  Babcock  when  they  purchased. 

OPINION. 

The  plaintiff  is  entitled  to  recover  unless  the  grounds  of  defence  relied 
upon  by  the  defendant  shall  be  found  sufficient  to  protect  him.  If  liable, 
the  measure  of  his  liability  is  the  value  of  the  entire  amount  of  the  cotton 
which  he  received,  at  fourteen  and  a  half  cents  per  pound,  with  interest  from 
the  20th  day  of  July,  1862,  the  time  of  the  alleged  conversion.  If  he  was 
then  guilty  of  an  illegal  and  wrongful  act  touching  the  cotton,  his  liability 
was  fixed  at  that  time,  and  the  subsequent  delivery  to  another  of  eighty-two 
bales,  upon  the  order  of  the  quartermaster,  and  the  taking  of  fourteen  bales 
by  the  gunboat,  can  have  no  retroactive  operation,  or  in  any  wise  affect  the 
amount  for  which  he  must  respond.  Where  property  is  tortiously  taken, 
every  one  who  receives  it  and  exercises  acts  of  ownership  over  it  is  guilty 
of  a  conversion,  and  is  liable  for  its  full  value,  without  reference  to  the  lia 
bility  of  others  through  whose  hands  it  may  also  have  passed,  either  before 
or  after  the  conversion  by  the  defendant.  (Williams  &  Ofiapin  v.  Marie, 
11  Wend.,  81.) 

In  the  eye  of  the  law,  the  order  of  the  quartermaster  and  the  act  of  the 
gunboat  are  immaterial  facts  in  the  case,  and  may  be  laid  out  of  view. 

Two  defences  are  relied  upon  by  the  defendant,  Guthrie. 

1.  That  this  court  has  no  jurisdiction  of  the  case. 

2.  That  as  soon  as  General  Curtis  acquired  a  firm  possession  of  the  prop 
erty,  by  having  it  conveyed  infra  presidia,  the  title  of  the  plaintiff  became 
ipso  facto  extinguished,  and  a  complete  title  vested  in  the  United  States ; 
and  that,  if  the  plaintiff  has  any  rights  left  in  respect  to  the  cotton,  they  must 
be  assessed  against  the  United  States,  and  that  he  has  none  which  can  be 
enforced  against  the  defendant. 

When  the  transaction  occurred  the  rebellion  had  risen  to  the  proportions 
of  a  civil  war,  and  was  fully  flagrant.  Arkansas  was  enemy's  territory,  and 
all  the  property  there  wras  enemy  property.  Cotton  was  an  article  of  foreign 
and  domestic  commerce.  It  was  one  of  the  main  sinewrs  of  the  power  of  the 
insurgents.  They  relied  upon  it  for  the  purchase  of  arms  and  other  muni 
tions  of  war,  and  chiefly  to  supply  them  with  financial  means  for  the  prose 
cution  of  the  strife.  Important  belligerent  rights  were  conceded  to  them  by 
the  government  of  the  nation.  Their  soldiers,  when  captured,  were  treated 
as  prisoners  of  war.  They  were  .exchanged,  and  not  held  for  treason. 
Their  vessels,  when  captured,  were  dealt  with  by  our  prize  courts.  Their 
ports  were  blockaded,  and  the  blockades  proclaimed  to  neutral  powers,  and 
property  found  on  board  such  vessels,  belonging  to  persons  residing  in  the 
rebel  States,  was  uniformly  held  to  be  confiscate  as  enemy  property.  All 
these  things  were  done  as  if  the  war  had  been  a  public  one  with  a  foreign 
power.  (The  Prize  Cases,  2  Black.  687  ;  Mrs.  Alexander's  Cotton,  2  Wal 
lace,  417  ;  Mauran  v.  Insurance  Company,  6  Wallace,  1.) 

No  act  of  Congress  had  then  been  passed  which  affects  the  case.  No 
regulations  issued  by  any  department  of  the  government  prior  to  that  time, 


APPENDIX.  593 

relating  to  the  subject,  have  been  brought  to  our  attention.  The  acts  of 
August  6,  1861,  and  of  July  17,  1862,  have  no  application. 

General  Curtis  and  his  army  are  to  be  regarded,  for  the  purposes  of  this 
case,  as  if  prosecuting  hostilities  in  a  foreign  country  with  which  the  United 
States  were  at  war,  and  the  case  is  to  be  decided  upon  the  principles  of  law 
applicable  in  that  condition  of  things. 

1.  In  respect  to  the  defence  first  mentioned,  the  inquiry  arises  whether  it 
should  not  have  been  presented  by  a  special  plea,  and  whether  it  can  be 
considered  under  the  general  issue. 

The  question  is  the  same  whether  a  seizure  jure  belli  be  made  upon  land 
or  water.  The  case  of  Lecaux  v.  Eden  (2  Douglas,  594)  was  of  the  latter 
class.  The  vessel  had  been  restored  and  the  captors  condemned  in  costs 
and  damages  by  a  decree  of  the  Prize  Court.  It  was  held  upon  the  fullest 
consideration  that  the  defence  was  admissible  under  the  general  issue.  The 
grounds  of  the  judgment  were,  that  the  capture  of  the  vessel  and  the  im 
prisonment  of  the  crew  were  not  trespasses  by  the  common  law ;  that  if 
wrongs  had  been  committed,  they  were  triable  only  by  the  law  of  nations, 
and  that  no  municipal  court  had  authority  to*  adjudicate  upon  the  subject. 

Such  was  the  unanimous  judgment  of  the  court.  If  there  were  no  tres 
passes  by  the  common  law  there,  a  multo  fortiori,  there  was  by  the  common 
law,  here,  no  conversion. 

In  Lindo  v.  Rodney  (2  Douglas,  613),  the  point  of  pleading  was  not 
raised,  but  the  same  doctrine  of  the  want  of  jurisdiction  in  the  courts  of 
common  law  was  affirmed  by  Lord  Mansfield  in  a  learned  and  elaborate 
judgment. 

In  Elphinstone\.J3edreechund,ihe  seizure  was  by  a  military  force  on  land. 
A  judgment  had  been  rendered  by  the  Supreme  Court  of  Bombay,  from 
which  an  appeal  was  taken.  Lord  Tenterden,  delivering  the  opinion  of  the 
Privy  Council,  said,  — 

"We  think  the  character  of  the  transaction  was  that  of  a  hostile  seizure 
made,  if  not  flagrante,  yet  nondum  cessante  bello —  regard  being  had  both 
to  the  time,  the  place,  and  the  person,  and  consequently  that  the  municipal 
court  had  no  jurisdiction  to  adjudge  upon  the  subject;  but  that  if  anything 
was  done  amiss,  recourse  could  only  be  had  to  the  government  for  redress. 
We  shall,  therefore,  recommend  to  his  Majesty  to  reverse  the  judgment." 
(1  Knapp's  P.  C.  R.  300.) 

"  It  should  also  be  observed  that  according  to  the  English  law,  which,  in 
this  respect,  is  in  accordance  with  the  principles  of  general  law  and  public 
jurisprudence,  no  action  can  be  maintained  in  a  court  of  municipal  law 
against  the  captor  of  booty  or  prize.  If  an  English  naval  commander  seizes 
property  as  belonging  to  the  enemy,  which  turns  out  clearly  to  be  British 
property,  he  forfeits  his  prize  in  the  Court  of  Admiralty,  and  that  court 
awards  the  return  of  it  to  the  party  from  whom  it  was  taken ;  but  the  case 
of  Lecaux  v.  Eden  decided  the  question  that  no  British  subject  can  maintain 
an  action  against  the  captor."  .  .  .  ''In  like  manner  property  taken 
under  color  of  military  authority  falls  under  the  same  rule.  If  property  be 
taken  by  an  officer  under  the  supposition  that  it  is  the  property  of  an  enemy, 
whether  of  a  State  or  an  individual,  which  ought  to  be  confiscated,  no  mu 
nicipal  court  can  judge  of  the  propriety  or  impropriety  of  the  seizure.  It 
can  be  judged  only  by  the  authority  delegated  by  the  Crown."  (3  Phil. 
International  Law,  192,  Sect.  130.) 

See  also  Alexander  v.  The  Duke  of  Wellington,  2  Russ.  and  M.,  54  ;  The 
Army  of  the  Deccan,  2  Knapp's  P.  C.  R.  106 ;  Nichol  v.  Goodall,  10 
Vesey,  156;  Hill  v.  Heardon,  2  Sim.  &  S.  431;  Ductwork  v.  Tucker, '2 
Taunt.  7;  1  Chitt.  General  Practice,  pp.  2,  18,  notes;  Porte  v.  United 

75 


594  APPENDIX. 

States,  Devereaux's  Rep.  (Court  of  Claims),  171.  These  authorities  are 
decisive  upon  the  subject.  If  the  action  would  not  lie  against  General  Cur 
tis,  obviously  it  will  not  against  his  vendee.  The  principal  fact,  and  the 
incident  which  followed,  are  governed  by  the  same  rule.  See  the  case  of  the 
Admiralty,  13  Co.  53  ;  Anonymous,  Cro.  Eliz.  685 ;  King  v.  Broom, 
Carth.  398 ;  Turner  &  Cary  v.  Neele,  I  Lev.  243  ;  Ridley  v.  Egglesfidd,  2 
Lev.  25. 

It  was  competent  for  Congress  to  give  the  jurisdiction,  but  it  has  not  seen 
proper  to  do  so.  (Const.  U.  S.  Art.  1,  Sect.  8.)  We  hold  this  objection  to 
the  plaintiff's  right  to  recover  well  taken.  This  conclusion  does  not  conflict 
with  the  ruling  of  the  Supreme  Court  in  Mitchell  v.  Harmony  (13  How. 
115.)  There  the  property  in  question  belonged  to  a  citizen,  and  not  to  an 
enemy. 

2.  It  remains  to  consider  the  second  proposition  relied  upon  by  the  de 
fendant.  Chancellor  Kent  says,  — 

"In  a  land  war,  movable  "property,  after  it  has  been  in  the  complete 
possession  of  the  enemy  twenty-four  hours  (and  which  goes  by  the  name  of 
booty,  and  not  prize),  becomes  absolutely  his  without  any  right  of  postliminy 
in  favor  of  the  original  owner ;  and  much  more  ought  this  species  of  prop 
erty  to  be  protected  from  the  rule  of  postliminy  when  it  has  not  only  passed 
into  the  complete  possession  of  the  enemy,  but  been  bonafide  transferred  to 
a  neutral."  (1  Kent's  Com.  120,  last  ed.) 

"  The  title  to  property  lawfully  taken  in  war  may,  upon  general  princi 
ples,  be  considered  as  immediately  divested  from  the  original  owner,  and 
transferred  to  the  captor."  .  .  .  "  As  to  personal  property,  or  mova 
bles,  the  title  is,  in  general,  considered  as  lost  to  the  former  proprietors  as 
soon  as  the  enemy  has  acquired  a  firm  possession,  which,  as  a  general  rule, 
is  considered  as  taking  place  after  the  lapse  of  twenty-four  hours,  or  after 
the  booty  has  been  carried  to  a  place  of  safety  infra  presidia  of  the  captor." 
(Lawrence's  Wheat.  629.) 

"  If  the  hostile  power  has  an  interest  in  the  property,  w\iich  is  available  to 
him  for  purposes  of  war,  that  fact  makes  it  prima  facie  a  subject  of  capture. 
The  enemy  has  such  an  interest  in  all  convertible  and  mercantile  property 
within  his  control,  or  belonging  to  persons  who  are  living  under  his  control, 
whether  it  be  on  land  or  at  sea,  for  it  is  a  subject  of  taxation,  contribution, 
and  confiscation."  (Dana's  Wheat,  s.  256,  n.  171.) 

Vattel  says, — 

"  We  have  a  right  to  deprive  our  enemy  of  his  possessions  of  every  kind 
which  may  augment  his  power  and  enable  him  to  make  war."  .  .  . 
"  Whenever  we  have  an  opportunity,  we  seize  on  the  enemy's  property,  and 
convert  it  to  our  own  use  ;  and  thus,  besides  diminishing  the  enemy's  power, 
we  augment  our  own,  and  obtain  at  least  a  partial  indemnification  or  equiva 
lent  either  for  what  constitutes  the  subject  of  the  war,  or  for  the  expenses 
and  losses  incurred  in  its  prosecution.  In  a  word,  we  do  ourselves  justice." 

.  .  "  As  the  towns  and  lands  taken  from  the  enemy  are  called  con 
quests,  all  movable  property  taken  from  him  comes  under  the  denomination 
of  booty.  This  booty  naturally  belongs  to  the  sovereign  prosecuting  the  war, 
no  less  than  the  conquests  ;  for  he  alone  has  such  claims  against  the  hostile 
nation  as  warrant  him  to  seize  on  such  property  and  convert  it  to  his  own 
use.  His  soldiers,  and  even  his  auxiliaries,  are  only  instruments,  which  he 
employs  in  asserting  his  right.  He  maintains  and  pays  them.  Whatever 
they  do  is  in  his  name  and  for  him."  (Vat.  Law  Nat.  pp.  365,  365,  Book 
3,  Chap.  9.) 

It  is  usual  to  allow  those  making  the  capture  to  appropriate  more  or  less 
of  the  property  to  their  own  use ;  but  the  paramount  right  and  title  are, 


APPENDIX.  595 

nevertheless,  in  the  sovereign,  who  may  assert  them  whenever  it  is  deemed 
proper. 

Congress,  in  passing  the  act  of  March  12,  1863,  in  relation  to  "  captured 
and  abandoned  property,"  proceeded  upon  this  ground. 

The  doctrines  thus  laid  down  are  in  accordance  with  those  of  all  approved 
publicists.  (See  the  authorities  cited  by  the  authors  from  whom  we  have 
quoted.) 

There  can  be  no  doubt  that  the  facts,  as  found,  bring  this  case  within  these 
authorities.  The  commanding  general  caused  the  cotton  to  be  seized  and 
brought  within  his  lines.  He  had  a  firm  possession  of  it  there  for  more  than 
the  requisite  time.  There  is  no  question  as  to  the  right  of  postliminy.  The 
possession  by  both  the  general  and  the  purchaser  was  unchallenged  by  the 
enemy.  The  purchaser  conveyed  the  property  to  New  York,  and  there 
sold  it. 

Under  the  law  arising  upon  these  facts  there  can  be  but  one  result. 

We  hold  the  second  objection  fatal,  also,  to  the  right  of  the  plantifF  to 
recover  in  this  action.  If  he  has  any  right  which  can  be  recognized,  it  is 
against  the  government,  and  must  be  asserted  elsewhere. 

Judgment  must  be  entered  for  the  defendant,  with  costs. 


TRIALS  FOR  CRIMES  AGAINST  THE  UNITED  STATES. 
Correspondence  between  President  Johnson  and  'Chief  Justice  Chase. 
On  the  2d  of  February,  1866,  the  President  communicated  the  following 
to  the  Senate  :  — 

To  the  Senate  of  the  United  States : 

The  accompanying  correspondence  I  herewith  transmit,  in  accordance 
with  the  resolution  of  the  16th  ult.,  requesting  the  President  to  communicate 
to  the  Senate  any  correspondence  which  may  have  taken  place  between  my 
self  and  any  of  the  judges  of  the  Supreme  Court  touching  the  holding  of 
civil  courts  of  the  United  States  in  insurrectionary  States  for  the  trial  of 
crimes  against  the  United  States.  ANDREW  JOHNSON. 

EXECUTIVE  MANSION,      ? 
WASHINGTON,  October  2,  1865.  $ 

DEAR  SIR  :  It  may  become  necessary  that  the  government  prosecute 
some  of  the  high  crimes  and  misdemeanors  committed  against  the  United 
States  within  the  District  of  Virginia.  Permit  me  to  inquire  whether  the 
Circuit  Court  of  the  United  States  for  that  district _is  so  far  organized  and 
in  condition  to  exercise  the  functions,  that  yourself  or  either  of  the  associ 
ate  justices  of  the  Supreme  Court  will  hold  a  term  of  the  Circuit  Court 
there  during  the  autumn  or  early  in  the  winter  for  the  trial  of  causes. 

Very  respectfully, 

ANDREW  JOHNSON. 
Hon.  S.  P.  CHASE,  Chief  Justice  of  Supreme  Court. 

WASHINGTON,  Thursday  Evening,  ) 
October  12,  1865.      $ 

DEAR  SIR  :  Your  letter  of  the  26th,  directed  to  Cleveland  and  for 
warded  to  Sandusky,  reached  me  there  night  before  last.  I  left  for  Wash 
ington  yesterday  morning,  and  have  just  arrived.  To  your  inquiry  whether 


596  APPENDIX. 

a  term  of  the  Circuit  Court  of  the  United  States  for  the  District  of  Virginia 
will  be  held  by  myself  or  one  of  the  associate  justices  of  the  Supreme 
Court  during  the  autumn  or  early  winter,  I  respectfully  reply  in  the  neg 
ative.  Under  ordinary  circumstances,  the  regular  term  authorized  by  Con 
gress  would  be  held  on  the  fourth  Monday  of  November,  which  this  year 
will  be  the  27th.  Only  a  week  will  intervene  between  that  day  and  the 
commencement  of  the  annual  term  of  the  Supreme  Court,  when  all  the 
judges  are  required  to  be  in  attendance  at  Washington.  That  time  is  too 
short  for  the  transaction  of  any  very  important  business. 

Were  this  otherwise,  I  so'mu.ch  doubt  the  propriety  of  holding  Circuit 
Courts  of  the  United  States  in  States  which  have  been  declared  by  the  ex 
ecutive  and  legislative  departments  of  the  national  government  to  be  in 
rebellion,  and  therefore  subjected  to  martial  law,  before  the  complete  resto 
ration  of  their  broken  relations  with  the  nation  and  the  supersedure  of  mil 
itary  by  civil  administration,  that  I  am  unwilling  to  hold  such  courts  in  such 
States  within  my  circuit,  which  includes  Virginia,  until  Congress  shall  have 
had  an  opportunity  to  consider  and  act  on  the  whole  subject.  A  civil  court 
in  a  district  under  martial  law  can  only  act  by  the  sanction  and^  under 
suspension  of  the  military  power ;  and  I  cannot  think  it  becomes  justices  of 
the  Supreme  Court  to  exercise  jurisdiction  under  such  conditions.  In^this 
view  it  is  proper  to  say  that  Mr.  Justice  Wayne,  whose  whole  circuit  is  in 
the  rebel  States,  concurs  with  me.  I  have  had  no  opportunity  of  consult 
ing  with  the  other  justices,  but  the  Supreme  Court  has  hitherto  declined  to 
consider  cases  brought  before  it  by  appeal  or  writ  of  error  from  Circuit  or 
District  Courts  in  reuel  portions  of  the  country.  No  very  reliable  inference, 
it  is  true,  can  be  drawn  from  this  action,  for  circumstances  have  changed 
since  the  court  adjourned  ;  but,  so  far  as  it  goes,  it  favors  the  conclusion  of 
myself  and  Justice  Wayne. 

With  great  respect,  yours  very  truly, 

S.  P.  CHASE. 


CHIEF  JUSTICE  CHASE  TO  THE  MEMBERS  OF  THE  BAR. 
At  the  opening  of  the  United  States  Circuit  Court  at  the  State  Senate 
Chamber,  Raleigh,  North  Carolina,  June  6,  1867,  before  proceeding  to  busi 
ness  the  Chief  Justice  made  the  following  remarks  :  — 

GENTLEMEN  OF  THE  BAR  :  Before  proceeding  to  the  regular  business,  I 
think  it  proper  to  address  a  few  observations  to  you.  For  more  than  four 
years  the  courts  of  the  .Union  were  excluded  from  North  Carolina  by  rebel 
lion.  When  active  hostilities  ceased  in  1865,  the  national  military  author 
ity  took  the  place  of  all  ordinary  civil  jurisdiction,  or  controlled  its  exercise. 
All  courts,  whether  State  or  national,  were  subordinated  to  military  su 
premacy,  and  acted,  when  they  acted  at  all,  under  such  limitations,  and  in 
such  cases,  as  the  commanding  general,  under  the  direction  of  the  Presi 
dent,  thought  fit  to  prescribe.  Their  process  might  be  disregarded  and 
their  judgments  and  decrees  set  aside  by  military  orders.  Under  these 
circumstances,  the  justices  of  the  Supreme  Court,  allotted  to  circuits  which 
included  the  insurgent  States,  abstained  from  joining  the  district  judges  in 
holding  Circuit  Courts.  Their  attendance  was  unnecessary,  for  the  district 
judges  were  fully  authorized  by  law  to  hold  Circuit  Courts  without  the  jus 
tices  of  the  Supreme  Court,  and  to  exercise  complete  jurisdiction  in  trial  of 
all  criminal  and  almost  all  civil  cases  ;  and  their  attendance  was  unnecessary 


APPENDIX.  597 

for  another  reason.  Military  tribunals  at  that  time,  and  under  existing  cir 
cumstances,  were  competent  to  the  exercise  of  all  the  jurisdiction,  criminal 
and  civil,  which  belongs,  under  ordinary  circumstances,  to  the  civil  courts. 
Being  unnecessary,  the  justices  thought  their  attendance  would  be  improper 
and  unbecoming.  They  regarded  it  as  unfit  in  itself,  and  injurious  in  many 
ways  to  the  public  interests,  that  the  highest  officers  of  the  judicial  depart 
ment  of  the  government  should  exercise  their  jurisdiction  under  the  super 
vision  and  control  of  the  executive  department.  At  length,  however, 
military  control  over  the  civil  tribunals  was  withdrawn  by  the  President,  the 
writ  of  habeas  corpus,  which  had  been  suspended,  was  restored,  and  military 
authority  in  civil  matters  abrogated.  This  was  effected  mostly  by  the  proc 
lamation  of  April,  1866,  and  partly  by  the  proclamation  of  August  20,  1866. 
These  proclamations  reinstated  the  full  authority  of  the  national  courts  in 
all  matters  within  their  jurisdiction.  The  justices  of  the  Supreme  Court 
are  expected  to  join  the  district  judges  in  holding  Circuit  Courts  during  the 
interval  between  the  terms  at  Washington.  On  the  23d  of  July,  1866, 
however,  an  act  of  Congress  reduced  the  number  of  circuits,  and  changed 
materially  the  districts  of  which  the  southern  circuits  were  composed,  with 
out  waiting  or  providing  for  an  allotment  of  the  members  of  fhe  Supreme 
Court  to  new  circuits,  and  without  such  allotment  the  justices  of  that  court 


the  new  allotment  was  authorized.  Under  this  act  the  justices  of  the  Su 
preme  Court  have  been  again  assigned  to  circuit  districts.  The  chief  justice 
has  been  allotted  to  hold  with  district  judges  the  national  court  in  the  cir 


cuit  in  which  the   district  of  North  Carolina  is  made  a  part.     I  am  here, 
?,  to  join  my  brother,   the  district   judge,  in  holding  the  Circuit 
Court  for  this  district.     It  is  the  first  Circuit  Court  held  in  any  district  with- 


therefore, 


in  the  insurgent  States  at  which  a  justice  of  the  Supreme  Court  could  be 
present,  without  disregard  of  superior  duties  at  the  seat  of  government  or 
usurpation  of  jurisdiction.  The  associate  justices  allotted  to  the  other 
southern  circuits  will  join  in  holding  courts  at  the  regular  terms  prescribed 
bylaw,  and  thus  the  national  civil  jurisdiction  will  be  fully  restored  through 
out  the  Union.  It  is  true  that  military  authority  is  still  exercised  within 
these  southern  circuits,  but  not  now,  as  formerly,  in  consequence  of  the  dis 
appearance  of  local  authority,  and  in  supervision  or  control  of  all  tribunals, 
whether  State  or  national.  It  is  now  used  under  acts  of  Congress,  and  only 
to  prevent  illegal  violence  to  personal  property,  and  to  facilitate  the  restora 
tion  of  every  State  to  equal  rights,  and  benefits  in  the  Union.  This  military 
authority  does  not  extend  in  any  respect  to  the  courts  of  the  United  States. 
Let  us  hope  that  henceforth  neither  rebellion  nor  any  other  occasion  for 
the  assertion  of  any  military  authority  over  the  courts  and  justices  will 
hereafter  suspend  the  due  course  of  judicial  administration  by  the  national 
tribunals  in  any  part  of  the  republic. 


598 


APPENDIX. 


THE  GRAPESHOT,  7  Wallace,  563. 

Upon  two  separate  motions  to  dismiss  an  appeal  from  the  decree  of  the 
Circuit  Court  of  the  United  States  for  the  District  of  Louisiana  ;  the  decree 
being  one  transferred  there  under  act  of  Congress,  from  the  late  so-called 
"  Provisional  Court,"  of  that  State  ;  both  motions  being  made  by  Mr.  Durant. 

The  ground  of  the  first  motion  was  because  the  transcript  was  incomplete, 
"  as  appeared  by  tlie  certificate  of  the  clerk  of  the  lower  court,  as  given  in 
the  printed  transcript,  and  because  it  further  appeared  by  the  said  certifi 
cate,  that  the  missing  parts  of  the  record  could  not  be  found,  so  that  it  was 
useless  to  issue  a  certiorari"  and  on  the  whole  impossible  for  this  court  to 
hear  and  decide  the  case. 

The  ground  of  the  second  motion  was,  that  the  Circuit  Court  of  the  United 
States  in  Louisiana  had  rendered  no  decree  from  which  an  appeal  could  be 
taken  ;  so  that  this  court  was  without  jurisdiction. 

This  Provisional  Court  of  Louisiana  .  .  .  had  been  established  by 
proclamation  of  the  President,  in  October,  1862,  when  the  war  of  the  rebel 
lion  had  subverted  and  swept  away  the  courts  of  the  Union,  and,  by  the 
terms  of  its  constitution,  was  to  last  no  longer  than  till  the  civil  authority 
was  restored. 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

The  ^first  motion  to  dismiss  this  appeal  is  made  upon  the  ground  that  the 
transcript  of  the  record  is  incomplete,  because  of  the  omission  of  certain 
papers  said  to  have  been  used  in  the  court  below,  but  not  to  be  found  when 
the  transcript  was  made. 

The  motion  must  be  denied.  Proof  that  the  papers  alleged  to  be  wanting 
were  used  in  the  court  below,  and  have  been  lost,  must  be  made  by  affidavit. 
The  certificate  of  the  clerk  who  made  the  transcript  cannot  be  received  as 
proper  evidence  of  these  facts. 

The  other  motion  is  made  upon  the  ground  that  the  decree  below  was 
rendered  by  the  Provisional  Court  of  Louisiana,  established  by  the  military 
authority  of  the  President,  during  the  late  rebellion,  from  which  no  appeal 
could  be  properly  taken.  But  we  find,  on  looking  into  the  statutes,  that 
when  the  Provisional  Court  ceased  to  exist,  its  judgments  and  decrees  were 
directed  to  be  transferred  into  the  Circuit  Court,  and  to  stand  as  the  judg 
ments  and  decrees  of  that  court.  And  it  is  from  the  decree  of  the  Circuit 
Court  that  the  appeal  under  consideration  was  taken.  As  an  appeal  from 
that  court  it  was  regular,  and  the  motion  to  dismiss  must  be  denied. 

All  questions  concerning  the  validity  of  judgments  and  decrees  of  the 
Provisional  Court  will  remain  open  until  after  final  hearing. 

Motions  denied. 


THE  STATE  OF  TEXAS  v.  WHITE,  7  Wallace,  702. 

For  the  opinion  of  the  majority  of  the  court  in  this  interesting  and  im 
portant  case,  the  reader  is  referred  to  the  Reports  above  cited.  The  follow 
ing  are  the  dissenting  opinions  of  the  minority  of  the  judges  :  — 

Mr.  Justice  Grier,  dissenting. 

I  regret  that  I  am  compelled  to  dissent  from  the  opinion  of  the  majority 
of  the  court  on  all  the  points  raised  and  decided  in  this  case. 


APPENDIX.  599 


The  first  question  in  order  is  the  jurisdiction  of  the  court  to  entertain  this 
bill  in  behalf  of  the  State  of  Texas. 

The  original  jurisdiction  of  this  court  can  be  invoked  only  by  one  of  the 
United  States.  The  Territories  have  no  such  right  conferred  on  them  by 
the  Constitution,  nor  have  the  Indian  tribes  who  are  under  the  protection  of 
the  military  authority  of  the  government. 

Is  Texas  one  of  these  United  States  ?  Or  was  she  such  at  the  time  this 
bill  was  filed,  or  since  ? 

This  is  to  be  decided  as  a  political  fact,  not  as  a  legal  fiction.  This  court 
is  bound  to  know  and  notice  the  public  history  of  the  nation. 

If  I  regard  the  truth  of  history  for  the  last  eight  years,  I  cannot  discover 
the  State  of  Texas  as  one  of  these  United  States.  I  do  not  think  it  neces 
sary  to  notice  any  of  the  very  astute  arguments  which  have  been  advanced 
by  the  learned  counsel  in  this,  case,  to  find  the  definition  of  a  State,  when 
we  have  the  subject  treated  in  a  clear  and  common  sense  manner  by  Chief 
Justice  Marshall  in  the  case  of  Hepburn  &  Dundass  v.  Ellxey.*  As  the 
case  is  short,  I  hope  to  be  excused  for  a  full  report  of  it,  as  stated  and 
decided  by  the  court.  He  says,  — 

"The  question  is,  whether  the  plaintiffs,  as  residents  of  the  District  of 
Columbia,  can  maintain  an  action  in  the  Circuit  Court  of  the  United  States 
for  the  District  of  Virginia.  This  depends  on  the  act  of  Congress  describ 
ing  the  jurisdiction  of  that  court.  The  act  gives  jurisdiction  to  the  Circuit 
Courts  in  cases  between  a  citizen  of  the  State  in  which  the  suit  is  brought 
and  a  citizen  of  another  State.  To  support  the  jurisdiction  in  this  case,  it 
must  appear  that  Columbia  is  a  State.  On  the  part  of  the  plaintiff,  it  has 
been  urged  that  Columbia  is  a  distinct  political  society,  and  is,  therefore,  a 
'  State '  according  to  the  definition  of  writers  on  general  law.  This  is  true ; 
but  as  the  act  of  Congress  obviously  uses  the  word  '  State '  in  reference  to 
that  term  as  used  in  the  Constitution,'  it  becomes  necessary  to  inquire  whether 
Columbia  is  a  State  in  the  sense  of  that  instrument.  The  result  of  that  exam 
ination  is  a  conviction  that  the  members  of  the  American  Confederacy  only 
are  the  States  contemplated  in  the  Constitution.  The  House  of  Representa 
tives  is  to  be  composed  of  members  chosen  by  the  people  of  the  several 
States,  and  each  State  shall  have  at  least  one  representative.  '  The  Senate 
of  the  United  States  shall  be  composed  of  two  senators  from  each  State/ 
Each  State  shall  appoint,  for  the  election  of  the  executive,  a  number  of 
electors  equal  to  its  whole  number  of  senators  and  representatives.  These 
clauses  show  that  the  word  '  State '  is  used  in  the  Constitution  as  designat 
ing  a  member  of  the  Union,  and  excludes  from  the  term  the  signification 
attached  to  it  by  writers  on  the  law  of  nations." 

Now  we  have  here  a  clear  and  weil-defined  test  by  which  we  may  arrive  at 
a  conclusion  with  regard  to  the  questions  of  fact  now  to  be  decided. 

Is  Texas  a  State,  now  represented  by  members  chosen  by  the  people  of 
that  State  and  received  on  the  floor  of  Congress  ?  Has  she  two  senators^to 
represent  her  as  a  State  in  the  Senate  of  the  United  States  ?  Has  her  voice 
been  heard  in  the  late  election  of  President  ?  Is  she  not  now  held  and  gov- 
.  erned  as  a  conquered  province  by  military  force  ?  The  act  of  Congress  of 
March,  2,  1867,  declares  Texas  to  be  a  "rebel  State,"  and  provides  for  its 
government  until  a  legal  and  republican  State  government  could  be  legally 
established.  It  constituted  Louisiana  and  Texas  the  fifth  military  district, 
and  made  it  subject,  not  to  the  civil  authority,  but  to  the  "  military  author 
ities  of  the  United  States." 

It  is  true  that  no  organized  rebellion  now  exists  there,  and  the  courts  of 

*  2  Cranck,  452. 


600  APPENDIX. 

the  United  States  now  exercise  jurisdiction  over  the  people  of  that  prov 
ince.  But  this  is  no  test  of  the  State's  being  in  the  Union ;  Dacotah  is  no 
State,  and  ^yet  the  courts  of  the  United  States  administer  justice  there  as 
they  do  in  Texas.  The  Indian  tribes,  who  are  governed  by  military  force, 
cannot  claim  to  be  States  of  the  Union.  Wherein  does  the  condition  of 
Texas  differ  from  theirs  ? 

Now,  by  assuming  or  admitting  as  a  fact  the  present  status  of  Texas  as 
a  State  not  in  the  Union  politically,  I  beg  leave  to  protest  against  any  charge 
of  inconsistency  as  to  judicial  opinions  heretofore  expressed  as  a  member  of 
this  court,  or  silently  assented  to.  I  do  not  consider  myself  bound  to  ex 
press  any  opinion  judicially  as  to  the  constitutional  right  of  Texas  to  exer 
cise  the  rights  and  privileges  of  a  State  of  this  Union,  or  the  power  of 
Congress  to  govern  her  as  a  conquered  province,  to  subject  her  to  military 
domination,  and  keep  her  in  pupilage.  .  I  can  only  submit  to  the  fact  as 
decided  _by  the  political  position  of  the  government  •  and  I  am  not  disposed 
to  join  in  any  essay  to  prove  Texas  to  be  a  State  of  the  Union,  when  Con 
gress  have  decided  that  she  is  not.  It  is  a  question  of  fact,  I  repeat,  and 
of  fact  only.  Politically,  Texas  is  not  a  State  in  this  Union.  Whether 
rightfully  out  of  it  or  not  is  a  question  not  before  the  court. 

But  conceding  now  the  fact  to  be  as  judicially  assumed  by  my  brethren, 
the  next  question  is,  whether  she  has  a  right  to  repudiate  her  contracts  ? 
Before  proceeding  to  answer  this  question,  we  must  notice  a  fact  in  this  case 
that  was  forgotten  in  the  argument.  I  mean,  that  the  United  States  are  no 
party  to  this  suit,  and  refusing  to  pay  the  bonds  because  the  money  paid 
would_  be  used  to  advance  the  interests  of  the  rebellion.  It  is  a  matter  of 
utter  insignificance  to  the  government  of  the  United  States  to  whom  she 
makes  the  payment  of  these  bonds.  They  are  payable  to  the  bearer.  The 
government  is  not  bound  to  inquire  into  the  bona  fides  of  the  holder,  nor 
whether  the  State  of  Texas  has  parted  with  the  bonds  wisely  or  foolishly. 
And  although  by  the  Reconstruction  Acts  she  is  required  to  repudiate  all 
debts  contracted  for  the  purposes  of  the  rebellion,  this  does  not  annul  all 
acts  of  the  State  government  during  the  rebellion,  or  contracts  for  other 
purposes,  nor  authorize  the  State  to  repudiate  them. 

Now,  whether  we  assume  the  State  of  Texas  to  be  judicially  in  the  Union 
(though  actually  out  of  it)  or  not,  it  will  not  alter  the  case.  The  contest 
now  is  between  the  State  of  Texas  and  her  own  citizens.  She  seeks  to 
annul  a  contract  with  the  respondents,  based  on  the  allegation  that  there 
was  no  authority  in  Texas  competent  to  enter  into  an  agreement  during  the 
rebellion.  Having  relied  upon  one  fiction,  namely,  that  she  is  a  State  in  the 
Union,  she  now  relies  upon  a  second  one,  which  she  wishes  this  court  to 
adopt,  that  she  was  not  a  State  at  all  during  the  five  years  that  she  was  in 
rebellion.  She  now  sets  up  the  plea  of  insanity,  and  asks  the  court  to  treat 
all  her  acts  made  during  the  disease  as  void. 

We  have  had  some  very  astute  logic  to  prove  that  judicially  she  was  not 
a  btate  at  all,  although  governed  by  her  own  legislature  and  executive  as 
11  a  distinct  political  body." 

The  ordinance  of  secession  was  adopted  by  the  convention  on  the  18th  of 
February,  1861 ;  submitted  to  a  vote  of  the  people,  and  ratified  by  an  over 
whelming  majority.  I  admit  that  this  was  a  very  ill-advised  measure.  Still 
it  was  the  sovereign  act  of  a  sovereign  State,  and  the  verdict  on  the  trial  of 
this  question,^'  by  battle,"  *  as  to  her  right  to  secede,  has  been  against  her. 
But  that  verdict  did  not  settle  any  question  not  involved  in  the  case.  It  did 
not  settle  the  question  of  her  right  to  plead  insanity  and  set  aside  all  her 

*  Prize  Cases,  2  Black.  073. 


APPENDIX.  601 


contracts,  made  during  the  pending  of  the  trial,  with  her  own  citizens,  for 
food,  clothing,  or  medicines.  The  same  "  organized  political  body,"  exer 
cising  the  sovereign  power  of  the  State,  which  required  the  indorsement  of 
these  bonds  by  the  governor,  also  passed  the  laws  authorizing  the  disposal 
of  them  without  such  indorsement.  She  cannot,  like  the  chameleon,  assume 
the  color  of  the  object  to  which  she  adheres,  and  ask  this  court  to  involve 
itself  in  the  contradictory  positions  that  she  is  a  State  in  the  Union  and  was 
never  out  of  it,  and  yet  not  a  State  at  all  for  four  years,  during  which  she 
acted  and  claims  to  be  "  an  organized  political  body,"  exercising  all  the 
powers  and  functions  of  an  independent  sovereign  State.  Whether  a  State 
de  facto  or  de  jure,  she  is  estopped  from  denying  her  identity  in  disputes 
with  her  own  citizens.  If  they  have  not  fulfilled  their  contract,  she  can  have 
her  legal  remedy  for  the  breach  of  it  in  her  own  courts. 

But  the  case  of  Hardenberg  differs  from  that  of  the  other  defendants. 
He  purchased  the  bonds  in  open  market,  bond  fide,  and  for  a  full  considera 
tion.  Now,  it  is  to  be  observed  that  these'bonds  are  payable  to  bearer,  and 
that  this  court  is  appealed  to  as  a  court  of  equity.  The  argument  to  justify 
a  decree  in  favor  of  the  Commonwealth  of  Texas  as  against  Hardenberg,  is 
simply  this  :  These  bonds,  though  payable  to  bearer,  are  redeemable  four 
teen  years  from  date.  The  government  has  exercised  her  privilege  of  pay 
ing  the  interest  for  a  term  without  redeeming  the  principal,  which  gives  an 
additional  value  to  the  bonds.  Ergo,  the  bonds  are  dishonored.  Ergo,  the 
former  owner  has  a  right  to  resume  the  possession  of  them,  and  reclaim 
them  from  a  bond  jide  owner  by  a  decree  of  a  court  of  equity. 

This  is  the  legal  ai:gument,  when  put  in  the  form  of  a  logical  sorites,  by 
which  Texas  invokes  our  aid  to  assist  her  in  the  perpetration  of  this  great 
wrong. 

A  court  of  chancery  is  said  to  be  a  co-urt  of  conscience ;  and  however 
astute  may  be  the  argument  introduced  to  defend  this  decree,  I  can  only  say 
that  neither  my  reason  nor  my  conscience  can  give  assent  to  it. 

Mr.  Justice  Swayne. 

I  concur  with  my  brother  Grier  as  to  the  incapacity  of  the  State  of  Texas, 
in  her  present  condition,  to  maintain  an  original  suit  in  this  court.  The 
question,  in  my  judgment,  is  one  in  relation  to  which  this  court  is  bound  by 
the  action  of  the  legislative  department  of  the  government. 

Upon  the  merits  of  the  case  I  agree  with  the  majority  of  my  brethren. 

I  am  authorized  to  say  that  my  brother  Miller  unites  with  me  in  these 


THE  GRAPESHOT,  9  WALLACE,  131. 

The  constitutional  power  of  the  President  to  establish  provisional  courts 
during  the  civil  war,  in  the  rebel  territory,  affirmed. 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

The  first  question  to  be  examined  in  this  case  is  one  of  jurisdiction^ 
The  suit,  shown  by  the  record,  was  originally  instituted  in  the  District 
Court  of  the  United  States  for  the  District  of  Louisiana,  where  a  decree  was 
rendered  for  the  libellant.  From  this  decree  an  appeal  was  taken  to  the 
Circuit  Court,  where  the  case  was  pending,  when,  in  1861,  the  proceedings 
of  the  court  were  interrupted  by  the  civil  war.  Louisiana  had  become  in 
volved  in  the  rebellion,  and  the  courts  and  officers  of  the  United  States  were 

76 


602  APPENDIX. 


excluded  from  its  limits.  In  1802,  however,  the  National  authority  had 
been  partially  re-established  in  the  State,  though  still  liable  to  be  overthrown 
by  the  vicissitudes  of  war.  The  troops  of  the  Union  occupied  New  Orleans, 
and  held  military  possession  of  the  city  and  such  other  portions  of  the  State 
as  had  submitted  to  the  general  government.  The  nature  of  this  occupa 
tion  and  possession  was  fully  explained  in  the  case  of  'Llie  Venice* 

Whilst  it  continued,  on  the  20th  of  October,  1862,  President  Lincoln,  by 
proclamation,  instituted  a  Provisional  Court  for  the  State  of  Louisiana,  with 
authority,  among  other  powers,  to  hear,  try,  and  determine  all  causes  in  ad 
miralty.  Subsequently,  by  consent  of  parties,  this  cause  was  transferred  into 
the  Provisional  Court  thus  constituted,  and  was  heard,  and  a  decree  was 
again  rendered  in  favor  of  the  libellants.  Upon  the  restoration  of  civil  au 
thority  in  the  State,  the  Provisional  Court,  limited  in  duration,  according  to 
the  terms  of  the  proclamation,  by  that  event,  ceased  to  exist. 

On  the  28th  of  July,  1866,  Congress  enacted  that  all  suits,  causes,  and 
proceedings  in  the  Provisional  C6urt,  proper  for  the  jurisdiction  of  the  Cir 
cuit  Court  of  the  United  States  for  the  Eastern  District  of  Louisiana,  should 
be  transferred  to  that  court,  and  heard  and  determined  therein  ;  and  that  all 
judgments,  orders,  and  decrees  of  the  Provisional  Court  in  causes  transferred 
to  the  Circuit  Court  should  at  once  become  the  orders,  judgments,  and  decrees 
of  that  court,  and  might  be  enforced,  pleaded,  and  proved  accordingly.! 

It  is  questioned,  upon  these  facts,  whether  the  establishment  by  the  Pres 
ident  of  a  Provisional  Court  was  warranted  by  the  Constitution. 

That  the  late  rebellion,  when  it  assumed  the  character  of  civil  war,  was 
attended  by  the  general  incidents  of  a  regular  war,  has  been  so  frequently 
declared  here,  that  nothing  further  need  be  said  on  that  point. 

The  object  of  the  National  government,  indeed,  was  neither  conquest  nor 
subjugation,  but  the  overthrow  of  the  insurgent  organization,  the  suppres 
sion  of  insurrection,  and  the  re-establishment  of  legitimate  authority.  But 
in  the  attainment  of  these  ends,  through  military  force,  it  became  the  duty 
of  the  National  government,  wherever  the  insurgent  power  was  overthrown, 
and  the  territory  which  had  been  dominated  by  it  was  occupied  by  the 
National  forces,  to  provide  as  far  as  possible,  so  long  as  the  war  continued, 
for  the  security  of  persons  and  property,  and  for  the  administration  of  justice. 

The  duty  of  the  National  government,  in  this  respect,  was  no  other  than 
that  which  devolves  upon  the  government  of  a  regular  belligerent  occupy 
ing,  during  war,  the  territory  of  another  belligerent.  It  was  a  military  duty, 
to  be  performed  by  the  President  as  commander-in-chief,  and  intrusted  as 
such  with  the  direction  of  the  military  force  by  which  the  occupation  was  held. 

What  that  duty  is,  when  the  territory  occupied  by  the  National  forces  is 
foreign  territory,  has  been  declared  by  this  court  in  several  cases  arising 
from  such  occupation  during  the  late  war  with  Mexico.  In  the  case  of 
Leitensdorfer  v.  Webb,$  the  authority  of  the  officer  holding  possession  for 
the  United  States  to  establish  a  provisional  government  was  sustained ;  and 
the  reasons  by  which  that  judgment  was  supported  apply  directly  to  the  es 
tablishment  of  the  Provisional  Court  in  Louisiana.  The  cases  of  Jccker  v. 
Montgomery^  and  Cross  v.  IIarrison,\\  may  also  be  cited  in  illustration  of 
the  principles  applicable  to  military  occupation. 

We  have  no  doubt  that  the  Provisional  Court  of  Louisiana  was  properly 
established  by  the  President  in  the  exercise  of  his  constitutional  authority 
during  war ;  or  that  Congress  had  power,  upon  the  close  of  the  war,  and 

*  2  Wallace,  259.  f  15  SLit.  at  Large,  306. 

\  20  Howard,  176.  §  1:5  id.  498,  and  18  Id.  110. 

||  16  Id.  104.  See  also  United  States  v.  Rice,  4  Wheaton,  246;  and  Texas  v.  Wliite,  7  Wal 
lace,  700. 


APPENDIX.  603 


the  dissolution  of  the  Provisional  Court,  to  provide  for  the  transfer  of  cases 
pending  in  that  court,  and  of  its  judgments  and  decrees,  to  the  proper  courts 
of  the  United  States. 

The  case  then  being  regularly  here,  we  will  proceed  to  dispose  of  it. 


THE  UNITED  STATES  v.  ANDERSON,  9  Wallace,  ('A. 
Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

Whether  the  positions  taken  by  the  learned  counsel  of  the  United  States 
in  the  court  below,  and  maintained  in  this  court  also,  are  well  taken  or  not 
depends  on  the  construction  to  be  given  the  act  concerning  abandoned 
and  captured  property,  and  the  4th  section  of  the  act  of  June  25,  1808. 

The  act  of  March  12,  1863,  in  one  particular,  inaugurated  a  policy  differ 
ent  from  that  which  induced  the  passage  of  other  measures  rendered  neces 
sary  by  the  obstinacy  and  magnitude  of  the  resistance  to  the  supremacy  of 
the  National  authority.  To  overcome  this  resistance,  and  to  carry  on  the 
war  successfully,  the  entire  people  of  the  States  in  rebellion  were  considered 
as  public  enemies  ;  but  it  is  familiar  history  that  there  were  many  persons 
whom  necessity  required  should  be  treated  as  enemies  who  were  friends,  and 
adhered  with  fidelity  to  the  National  cause.  This  class  of  people,  compelled 
to  live  among  those  who  were  combined  to  overthrow  the  Federal  authority, 
and  liable  at  all  times  to  be  stripped  of  their  property  by  the  usurped  gov 
ernment,  were  objects  of  sympathy  to  the  loyal  people  of  this  country,  and 
their  unfortunate  condition  was  appreciated  by  Congress. 

During  the  progress  of  the  war  it  was  expected  that  our  forces  in  the  field 
would  capture  property,  and,  as  the  enemy  retreated,  that  property  would 
remain  in  the  country  without  apparent  ownership,  which  should  bo  collected 
and  disposed  of.  In  this  condition  of  things  Congress  acted.  While  pro 
viding  for  the  disposition  of  this  captured  and  abandoned  property,  Congress 
recognized  the  status  of  the  loyal  Southern  people,  and  distinguished  be 
tween  property  owned  by  them  and  the  property  of  the  disloyal.  It  was 
not  required  to' do  this,  for  all  the  property  obtained  in  this  manner  could, 
by  proper  proceedings,  have  been  appropriated  to  the  necessities  of  the  war. 
But  Congress  did  not  think  proper  to  do  this.  In  a  spirit  of  liberality  it 
constituted  the  government  a  trustee  for  so  much  of  this  property  as  be 
longed  to  the  faithful  Southern  people,  and  while  directing  that  all  of  it 
should  be  sold  and  its  proceeds  paid  into  the  treasury,  gave  to  this  class  of 
persons  an  opportunity,  at  any  time  within  two  years  after  the  suppression 
of  the  rebellion,  to  bring  their  suit  in  the  Court  of  Claims,  and  establish 
their  right  to  the  proceeds  of  that  portion  of  it  which  they  owned,  requiring 
from  them  nothing  but  proof  of  loyalty  and  ownership. 

It  is  true  the  liberality  of  Congress  in  this  regard  was  not  confined  to 
Southern  owners,  for  the  law  is  general  in  its  terms,  and  protects  all  loyal 
owners ;  but  the  number  of  Northern  citizens  who  could,  in  any  state  of  the 
case,  be  bona  fide  owners  of  this  kind  of  property  was  necessarily  few,  arid 
their  condition,  although  recognized  in  the  law,  did  not  induce  Congress  to 
incorporate  in  it  the  provision  we  are  considering. 

The  measure,  in  itself  of  great  beneficence,  was  practically  important  only 
in  its  application  to  the  loyal  Southern  people,  and  sympathy  for  their  situ 
ation  doubtless  prompted  Congress  to  pass  it.  It  is  in  view  of  this  state 
of  things,  as  it  is  the  duty  of  a  court  in  construing  a  law  to  consider  the.  cir 
cumstances  under  which  it  was  passed  and  the  object  to  be  accomplished  by 
it,  that  we  are  called  upon  to  apply  this  particular  provision  to  the  facts  of 


604  APPENDIX. 

this  case.  The  loyalty  of  the  claimant  is  not  questioned,  but  his  ownership, 
in  the  sense  of  the  law,  of  the  property  in  dispute  is  denied. 

It  is  not  denied  that  he  purchased  the  property  in  good  faith  for  value, 
and  with  no  purpose  to  defraud  the  government  or  any  one  else  ;  but  it  is 
said  the  persons  from  whom  he  bought  resided  in  South  Carolina,  were  pre 
sumed  to  be  rebels,  and  were,  therefore,  prohibited  from  selling. 

This  is  an  attempt  to  import  from  the  confiscation  law  of  July  17,  1862, 
into  this  law,  a  disability  which  it  does  not  contain.  If  this  could  be  done, 
but  very  little  benefit  would  accrue  to  the  loyal  people  of  the  South  from 
the  privilege  conferred  on  them  by  the  law  in  question.  It  is  well  known 
that  nearly  all  the  Southern  people  were  engaged  in  the  rebellion,  and  that 
those  who  were  not  thus  employed  furnished  the  exception  rather  than  the 
rule.  Few  as  they  were,  the  necessities  of  life  required  that  they  should  buy 
and  sell,  and,  equally  so,  that  their  trading  should  be  free  and  unrestricted. 

This  condition  of  things  Congress  was  aware  of,  and  if  it  had  been  its  pur 
pose  to  limit  the  privilege  in  controversy  to  the  loyal  citizen,  who  happened 
to  acquire  his  property  from  another  person  equally  loyal,  they  would  have 
said  so.  But  Congress  had  no  such  narrow  policy  in  view.  Its  policy  in 
the  matter  was  broad  and  comprehensive,  and  embraced  within  its  range  all 
persons  who  had  adhered  to  the  Union.  It  treated  all  alike,  and  did  not 
discriminate  in  favor  of  the  person  who  could  trace  his  title  through  a  loyal 
source,  and  against  him  who  was  not  so  fortunate.  It  did  not  consider  the 
loyal  planter,  who  raised  his  own  cotton  and  rice,  as  entitled  to  any  more 
protection  than  the  dweller  in  the  cities  and  towns  who  lived  by  traffic,  and 
bought  where  he  could  buy  the  cheapest. 

The  confiscation  law,  however,  was  not  intended  to  apply  to  a  person  oc 
cupying  the  status  of  this  claimant.  The  purpose  which  Congress  had  in 
view  in  passing  that  law  was  very  different  from  that  which  induced  it,  in  the 
Captured  and  Abandoned  Property  Act,  to  extend  a  privilege  to  the  loyal 
owner.  The  confiscation  law  concerns  rebels  and  their  property ;  was  in 
tended  as  a  measure  to  cripple  their  resources  ;  and,  in  so  far  as  it  claims 
the  right  to  seize  and  condemn  their  property,  as  a  punishment  for  their 
crimes,  recognizes  that  certain  legal  proceedings  are  necessary  to  do  so. 
But  by  the  act  in  question  the  government  yielded  its  right  to  seize  and 
condemn  the  property  which  it  took  in  the  enemy's  country  if  it  belonged  to 
a  faithful  citizen,  and  substantially  said  to  him,  "  We  are  obliged  to  take  the 
property  of  friend  and  foe  alike,  which  we  will  sell  and  deposit  the  proceeds 
of  in  the  treasury  ;  and  if,  at  any  time  within  two  years  after  the  suppression 
of  the  rebellion,  you  prove  satisfactorily  that  of  the  property  thus  taken  you 
owned  a  part,  we  will  pay  you  the  net  amount  received  from  its  sale." 

The  two  acts  cannot  be  construed  inpari  materid.  The  one  is  penal,  the 
other  remedial ;  the  one  claims  a  right,  the  other  concedes  a  privilege. 

It  is  said  the  vendors  of  the  cotton  were  incompetent  witnesses  by  reason 
of  the  4th  section  of  the  act  of  June  25,  1868,  which  declares  that  no  plain 
tiff  or  claimant,  or  any  person  from  or  through  whom  any  such  plaintiff  or 
claimant  derives  his  alleged  title,  claim,  or  right  against  the  United  States, 
or  any  person  interested  in  any  such  title,  claim,  or  right,  shall  be  a  competent 
witness  in  the  Court  of  Claims  in  supporting  any  such  title,  claim,  or  right. 

There  are  three  classes  of  persons  who  are,  by  this  section,  prohibited 
from  testifying.  The  claimant  cannot  testify,  nor  can  the  person  who,  after 
a  claim  has  accrued  to  him  against  the  United  States,  has  sold  or  transferred 
it  to  the  claimant,  nor  can  any  one  who  is  interested  in  the  event  of  the 
suit.  Doucen  and  Fleming,  the  immediate  vendors  of  Anderson,  are  not 
excluded  by  this  rule.  They  were  not  interested  in  the  suit,  and  in  no  sense 
did  Anderson  derive  his  claim  against  the  United  States  through  them. 
They  never  had  any  claim  against  the  United  States,  because  when  the 


APPENDIX.  605 

property  was  taken  it  belonged  to  Anderson,  and  it  is  only  after  the  property 
was  sold  that  Anderson's  claim  even  to  the  proceeds  attached.  If  the  prop 
erty  in  transitu  from  Charleston  to  New  York  had  been  lost,  no  claim  could 
arise  under  the  law  in  favor  of  Anderson  against  the  United  States,  his  claim 
being  contingent  upon  the  proceeds  of  the  property  finally  reaching  the 
treasury. 

But  the  point  most  pressed  in  the  argument  against  the  right  to  recover 
in  this  case  relates  to  the  limitation  in  the  law.  It  is  contended  that  the 
claim  was  barred  by  this  limitation,  as  it  was  not  preferred  until  the  5th  of 
June,  1868.  It  is,  therefore,  necessary  to  determine  when  the  time  for  pre 
ferring  claims  commenced,  and  when  it  ended.  The  words  of  the  statute  on 
this  subject  are,  that  any  person  claiming  to  be  the  owner  of  abandoned  or 
captured  property  may,  at  any  time  within  two  years  after  the  suppression 
of  the  rebellion,'  prefer  bis  claim  to  the  proceeds  thereof  in  the  Court  of 
Claims.  There  is  certainly  nothing  in  the  words  of  this  provision  which  dis 
ables  a  person  from  preferring  his  claim  immediately  after  the  proceeds  of 
his  property  have  reached  the  treasury,  and  there  is  no  good  reason  why  a 
different  interpretation  should  be  given  them.  On  the  contrary,  there  is 
sufficient  reason  in  the  nature  of  the  legislation  on  this  subject,  apart  from 
the  letter  of  the  law,  to  bring  the  mind  to  the  conclusion  that  Congress  in 
tended  to  give  the  claimant  an  immediate  right  of  action.  The  same  motive 
that  prompted  Congress  to  grant  the  privilege  to  prefer  a  claim  at  all,  oper 
ated  to  allow  it  to  be  done  so  soon  as  the  property  had  been  converted  into 
money.  If,  in  the  condition  of  the  country,  it  was  known  that  the  Union 
men  of  the  South,  as  a  general  thing,  would  be  unable  to  prosecute  their 
claims  while  the  war  lasted,  still  it  was  recognized  that  some  persons  might 
be  fortunate  enough  to  do  so,  and  to  meet  the  requirements  of  their  cases 
the  right  to  sue  at  once  was  conferred.  In  the  progress  of  the  war,  as  our 
armies  advanced  and  were  able  to  afford  protection  to  the  Union  people,  it 
was  expected  that  many  of  them,  availing  themselves  of  the  opportunity, 
would  escape  into  the  National  lines,  and  be  thus  in  a  condition  to  secure 
the  rights  conceded  to  them  by  this  statute  ;  and  the  history  of  the  times 
informs  us  that  this  expectation  was  realized.  To  impute  to  Congress  a 
design  to  compel  these  people,  impoverished  as  they  were  known  to  be,  to 
wait  until  the  war  was  over  before  they  could  institute  proceedings  in  the 
Court  of  Claims,  would  be  inconsistent  with  the  general  spirit  of  the  statute, 
and  cannot  be  entertained.  If,  then,  the  right  to  prefer  a  claim  attached  as 
soon  as  the  money  reached  the  territory,  when  did  it  expire  ?  The  law  says 
two  years  after  the  rebellion  was  suppressed ;  but  the  question  recurs,  when 
is  the  rebellion  to  be  considered  suppressed,  as  regards  the  rights  intended 
to  be  secured  by  this  statute  ?  It  is  very  clear  that  the  limitation  applied 
to  the  entire  suppression  of  the  rebellion,  and  that  no  one  was  intended  to 
be  affected  by  its  suppression  in  any  particular  locality.  It  might  be  sup 
pressed  in  one  State  and  not  in  another,  but  the  citizen  of  the  State  that  had 
ceased  hostilities  was  in  no  better  or  worse  position  in  this  regard  than  the 
citizen  of  the  State  where  hostilities  were  active.  The  limitation  was  not 
partial  in  its  character,  but  operated  on  all  persons  alike  who  are  affectedly 
it;  was  dependent  on  the  solution  of  a  great  problem,  and  an  interpretation 
of  it  which  would  prescribe  one  rule  for  the  people  of  one  State,  and  a  dif 
ferent  rule  for  those  living  in  another  State,  cannot  be  allowed  to  prevail. 

The  point,  therefore,  for  determination  is,  when,  in  the  sense  of ^this  law, 
was  the  rebellion  entirely  suppressed.  And  in  this  connection  it  is  proper 
to  say,  that  the  purposes  of  this  suit  do  not  require  us  to  discuss  the  ques 
tion  —  which  may  have  an  important  bearing  on  other  cases  —  whether  the 
rebellion  can  be  considered  as  suppressed  for  one  purpose  and  not  for  an- 


606  APPENDIX. 

other,  nor  any  of  the  kindred  questions  arising  out  of  it,  and  we  therefore 
express  no  opinion  on  the  subject. 

The  inquiry  with  which  we  have  to  deal  concerns  its  suppression  only  in 
its  relation  to  those  persons  who  are  within  the  protection  of  this  law.  It  is 
argued,  as  the  rebellion  was  in  point  of  fact  suppressed  when  the  last  Con 
federate  general  surrendered  to  the  National  authority,  that  the  limitation 
began  to  run  from  that  date.  If  this  were  so,  there  is  an  end  to  the  contro 
versy;  but  did  Congress  mean,  when  it  passed  the  statute  in  question,  that 
the  Union  men  of  the  South,  whose  interests  are  especially  cared  for  by  it, 
should,  without  any  action  by  Congress  or  the  Executive  on  the  subject, 
take  notice  of  the  day  that  armed  hostilities  ceased  between  the  contending 
parties,  and  if  they  did  not  present  their  claims  within  two  years  of  that 
time,  be  forever  barred  of  their  recovery?  The  inherent  difficulty  of  deter 
mining  such  a  matter,  renders  it  certain  that  Congress  did  not  intend  to  im 
pose  on  this  class  of  persons  the  necessity  of  deciding  it  for  themselves.  In 
a  foreign  war,  a  treaty  of  peace  would  be  the  evidence  of  the  time  when  it 
closed,  but  in  a  domestic  war,  like  the  late  one,  some  public  proclamation 
or  legislation  would  seem  to  be  required  to  inform  those  whose  private 
rights  were  affected  by  it,  of  the  time  when  it  terminated,  and  we  are  of  the 
opinion  that  Congress  did  not  intend  that  the  limitation  in  this  act  should 
begin  to  run  until  this  was  done.  There  are  various  acts  of  Congress  and 
proclamations  of  the  President  bearing  on  the  subject,  but  in  the  view  we 
take  of  this  case,  it  is  only  necessary  to  notice  the  proclamation  of  the  Pres 
ident,  of  August  20, 1866,  and  the  act  of  Congress  of  the  2d  of  March,  1867. 

On  the  20th  day  of  August,  1866,  the  President  of  the  United  States, 
after  reciting  certain  proclamations  and  acts  of  Congress  concerning  the  re 
bellion,  and  his  proclamation  of  2d  of  April,  1866,  that  armed  resistance  had 
ceased  everywhere  except  in  the  State  of  Texas,  did  proclaim  that  it  had 
ceased  there  also,  and  that  the  whole  insurrection  was  at  an  end,  and  that 
peace,  order,  and  tranquillity  existed  throughout  the  whole  of  the  United 
States  of  America.  This  is  the  first  official  delaration  that  we  have,  on  the 
part  of  the  Executive,  that  the  rebellion  was  wholly  suppressed,  and  we  have 
shown,  in  a  previous  part  of  this  opinion,  that  the  limitation,  in  its  effects  on 
the  persons  whose  rights  we  are  considering,  did  not  begin  to  run  until  the 
rebellion  was  suppressed  throughout  the  whole  country.  But  we  are  not 
without  the  action  of  the  legislative  department  of  the  government  on  this 
subject.  On  the  20th  day  of  June,  1864,  Congress  fixed  the  pay  of  non 
commissioned  officers  and  privates,  and  declared  that  it  should  continue 
during  the  rebellion ;  and  on  the  2d  day  of  March,  1867,  it  continued  this 
act  in  force  for  three  years  from  and  after  the  close  of  the  rebellion,  as  an 
nounced  by  the  proclamation  of  the  President. 

Congress,  then,  having  adopted  the  20th  day  of  August,  1866,  in  con 
formity  with  the  announcement  of  the  President,  as  the  day  the  rebellion 
closed,  for  the  purpose  of  regulating  the  pay  of  non-commissioned  officers 
and  privates,  can  it  be  supposed  that  it  intended  to  lay  down  a  harsher  rule 
for  the  guidance  of  the  claimants  under  the  Captured  and  Abandoned 
Property  Act,  than  it  thought  proper  to  apply  to  another  class  of  persons 
whose  interests  it  equally  desired  to  protect.  In  order  to  reach  this  conclu 
sion,  it  is  necessary  to  ascribe  to  Congress  a  policy  regarding  the  statute 
under  which  this  claim  is  preferred  foreign  to  the  views  we  have  expressed 
concerning  it.  Besides,  it  would  require  us  to  construe  two  acts  differently, 
although  relating  to  the  same  general  subject,  in  the  absence  of  any  evidence 
that  such  was  the  intention  of  the  legislature.  If  we  are  right  as  to  the 
motive  which  prompted  Congress  to  pass  the  law  in  question,  and  the  object 
to  be  accomplished  by  it,  it  is  clear  the  point  of  time  should  be  construed 
most  favorably  to  the  person  who  adhered  to  the  National  Union,  and  who 


APPENDIX.  607 

has  proved  the  government  took  his  property,  and  has  the  money  arising 
from  its  sale  in  the  treasury. 

As  Congress,  in  its  legislation  for  the  army,  has  determined  that  the  re 
bellion  closed  on  the  20th  day  of  August,  1866,  there  is  no  reason  why  its 
declaration  on  this  subject  should  not  be  received  as  settling  the  question 
wherever  private  rights  are  affected  by  it.  That  day  will,  therefore,  be  ac 
cepted  as  the  day  when  the  rebellion  was  suppressed,  as  respects  the  rights 
intended  to  be  secured  by  the  Captured  and  Abandoned  Property  Act. 

The  point  taken  that  the  court  below  was  not  authorized  to  render  judg 
ment  for  a  specific  sum,  but  only  to  determine  whether  the  claimant  was  en 
titled  to  receive  the  proceeds  of  his  property,  leaving  it  for  an  officer  of  the 
treasury  to  fix  the  amount,  cannot  be  sustained.  To  sustain  this  position, 
would  require  us  to  hold  that  for  this  class  of  cases  Congress  intended  to 
constitute  the  Court  of  Claims  a  mere  commission.  This  court  will  not  at 
tribute  to  Congress  a  purpose  that  would  lead  to  such  a  result,  in  the 
absence  of  an  express  declaration  to  that  effect. 

It  is  proper  to  say,  in  conclusion,  that  the  case  of  McKee  v.  United 
States ,*  cited  as  an  authority  against  the  claimant's  right  to  recover,  has  no 
application  whatever  to  this  case. 

Judgment  affirmed. 


THE  UNITED  STATES  v.  KEEHLER,  9  Wallace,  86. 
Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

It  is  stated  that  the  Confederate  Congress  passed  an  act  appropriating 
balances  of  this  kind  to  the  payment  of  claims  against  the  United  States  for 
postal  service,  where  the  parties  resided  within  the  limits  of  the  States  in 
rebellion,  and  that  under  this  act  an  order  was  drawn  by  the  post-office  de 
partment  of  the  Confederate  States  on  Keehler,  directing  him  to  pay  this 
money  to  Clemmens,  and  that  on  this  order  it  was  paid. 

It  certainly  cannot  be  admitted  for  a  moment  that  a  statute  of  the  Con 
federate  States,  or  the  order  of  its  postmaster  general,  could  have  any  legal 
effect  in  making  the  payment  to  Clemmens  valid.  The  whole  Confederate 
power  must  be  regarded  by  us  as  a  usurpation  of  unlawful  authority,  inca 
pable  of  passing  any  valid  laws,  and  certainly  incapable  of  divesting,  by  an 
act  of  its  Congress  or  an  order  of  one  of  its  departments,  any  right  or  prop 
erty  of  the  United  States.  Whatever  weight  may  be  given  under  some  cir 
cumstances  to  its  acts  of  force,  on  the  ground  of  irresistible  power,  or  what 
ever  effect  may  be  allowed  in  proper  cases  to  the  legislation  of  the  States 
while  in  insurrection,  —  questions  which  we  propose  to  decide  only  when 
they  arise,  —  the  acts  of  the  Confederate  Congress  can  have  no  force,  as  law, 
in  divesting  or  transferring  rights,  or  as  authority  for  any  act  opposed  to 
the  just  authority  of  the  Federal  government.  This  statute  of  the  Confed 
erate  Congress  and  this  draft  of  its  post-office  department  are  not,  there 
fore,  a  sufficient  authority  for  the  payment  to  Clemmens. 


HICKMAN  v.  JONES,  9  Wallace,  198. 
Mr.  Justice  Swayne  stated  the  case,  and  delivered  the  opinion  of  the  court. 

The  facts  disclosed  in  the  record,  so  far  as  it  is  necessary  to  state  them, 
are  as  follows  :  — 

During  the  late  civil  war,  the  rebel  government  established  a  court  known 

*  8  Wallace,  163. 


608  APPENDIX. 


as  the("  District  Court  of  the  Confederate  States  of  America  for  the  North 
ern  District  of  Alabama."  In  that  court  the  plaintiff  in  error  was  indicted 
for  treason  against  the  Confederate  States.  The  indictment  alleged  that 
troops  of  the  United  States  were  in  the  Northern  District  of  Alabama  en 
gaged  in  a  hostile  enterprise  against  the  Confederate  States,  and  that  Hick- 
man  "did  traitorously  then  and  there  assemble  and  continue  with  the  said 
troops  of  the  said  United  States  in  the  prosecution  of  their  said  expedition 
against  the  Confederate  States  j  and  then  and  there,  with  force  and  arms 
and  with  the  traitorous  intention  of  co-operating  with  the  said  troops  of  the 
United  States  in  effecting  the  object  of  the  said  hostile  expedition,  did  array 
and  dispose  himself  with  them  in  a  hostile  and  warlike  manner  against  the 
said  Confederate  States;  and  then  and  there,  with  force  and  arms,  in  pur 
suance  of  such  his  traitorous  intentions,  he,  the  said  James  Hickman,  with 
the  said  persons,  so  as  aforesaid  assembled,  armed,  and  arrayed  in  manner 
aforesaid,  wickedly  and  traitorously  did  levy  war  against  the  said  Confeder 
ate  States."  Upon  this  indictment  a  warrant  was  issued  for  the  arrest  of 
Hickman.  He  was  arrested  and  imprisoned  accordingly.  He  applied  to 
the  defendant,  Jones,  who  assumed  to  act  as  judge  of  the  court,  to  be  al 
lowed  to  give  bail.  Jones  rejected  the  application,  and  remanded  him  to 
prison.  He  was  subsequently  tried,  acquitted,  and  discharged.  He  alleges 
that  the  proceeding  was  without  probable  cause,  and  malicious.  Moore  was 
the  clerk  of  the  pretended  court.  The  name  of  Regan  is  signed  to  the  in 
dictment  as  district  attorney,  and  he  conducted  the  trial,  Robert  W.  Col- 
tart  was  Deputy  marshal,  and  Clay  was  the  editor  and  publisher  of  the 
"^Huntsville  Confederate,"  a  newspaper  through  which  it  was  alleged  he  in 
cited  the  prosecution  by  means  of  malicious  attacks  upon  Hickman  designed 
to  produce  that  result.  The  other  defendants  were  members  of  the  grand 
jury  by  which  the  indictment  was  found.  Testimony  was  given  tending  to 
show  that  the  plaintiff  sympathized  with  the  rebellion  and  participated  in  it 
while  the  rebel  power  predominated  in  North  Alabama,  both  before  and  after 
its  first  invasion  by  the  forces  of  the  United  States.  The  court  instructed 
the  jury,  among  other  things,  as  follows  : — 

*|  If,  in  the  case  at  the  bar,  you  believe  that  the  acts  and  speeches  of  the 
plaintiff,  upon  which  the  defendants  rely  to  prove  his  complicity  with  the 
rebellion,  were  the  result  of  anything  less  than  a  fear  that  if  he  did  not  so 
speak  and  act,  his  life  or  his  liberty  or  his  property  would  be  sacrificed  to 
his  silence  or  his  omission,  you  will  find  a  verdict  for  the  defendants. 

"  If,  on  the  other  hand,  you  believe  that  these  acts  of  apparent  complicity 
with  the  rebellion  were  performed  by  the  plaintiff  under  the  influence  of  an 
honest  and  rational  apprehension  that  to  do  otherwise  would  expose  him  to 
persecution  or  prosecution,  or  to  loss  of  life,  liberty,  or  property,  and  that 
notwithstanding  these  acts  of  affiliation  with  the  rebel  community  in  which 
he  lived,  he  was  always  at  heart  honestly  and  truly  loyal  to  the  government 
of  his  country,  he  is  entitled  to  your  verdict." 

^  The  jury  were  further  instructed  that  it  was  their  duty  to  acquit  the  de 
fendants,  R.  W.  Coltart  and  Clay.  Exceptions  were  duly  taken  by  the 
plaintiff,  and  the  case  is  brought  here  for  review. 

We  have  to  complain  in  this  case,  as  we  do  frequently,  of  the  manner  in 
which  the  bill  of  exceptions  has  been  prepared.  It  contains  all  the  evidence 
adduced  on  both  sides,  and  the  entire  charge  of  the  court.  This  is  a  direct 
violation  of  the  rule  of  this  court  upon  the  subject.  We  have  looked  into 
the  evidence  and  the  charge  only  so  far  as  was  necessary  to  enable  us  fully 
to  comprehend  the  points  presented  for  our  consideration  —  thus  in  effect 
reducing  the  bill  to  the  dimensions  which  the  rule  prescribes.  No  good  re 
sult  can  follow  in  any  case  from  exceeding  this  standard.  Our  labors  are 


APPENDIX.  609 

unnecessarily  increased,  and  the  case  intended  to  be  presented  is  not  un- 
frequently  obscured  and  confused  by  the  excess. 

The  rebellion  out  of  which  the  war  grew  was  without  any  legal  sanction. 
In  tlie  eye  of  the  law,  it  had  the  same  properties  as  if  it  had  been  the  insur 
rection  of  a  county  or  smaller  municipal  territory  against  the  State  to  which 
it  belonged.  The  proportions  and  duration  of  the  struggle  did  not  affect 
its  character.  Nor  was  there  a  rebel  government  dc  facto  in  such  a  sense 
as  to  give  any  legal  efficacy  to  its  acts.  It  was  not  recognized  by  the  Na 
tional,  nor  by  any  foreign  government.  It  Avas  not  at  any  time  in  possession 
of  the  capital  of  the  nation.  It  did  not  for  a  moment  displace  the  rightful 
government.  That^  government  was  always  in  existence,  always  in  the  reg 
ular  discharge  of  its  functions,  and  constantly  exercising  all  its  military 
power  to  put  down  the  resistance  to  its  authority  in  the  insurrectionary 
States.  The  union  of  the  States,  for  all  the  purposes  of  the  Constitution, 
is  as  perfect  and  indissoluble  as  the  union  of  the  integral  parts  of  the  States 
themselves  ;  and  nothing  but  revolutionary  violence  can,  in  either  case,  de 
stroy  the  ties  which  hold  the  parts  together.  For  the  sake  of  humanity, 
certain  belligerent  rights  were  conceded  to  the  insurgents  in  arms.  But 
the  recognition  did  not  extend  to  the  pretended  government  of  the  Confed 
eracy.  The  intercourse  was  confined  to  its  military  authorities.  In  no  in 
stance  was  there  intercourse  otherwise  than  of  this  character.  The  rebellion 
was  simply  an  armed  resistance  to  the  rightful  authority  of  the  sovereign. 
Such  was  its  character  in  its  rise,  progress,  and  downfall.  The  act  of  the 
Confederate  Congress  creating  the  tribunal  in  question  was  void.  It  was  as 
if  it  were  not.  The  court  was  a  nullity,  and  could  exercise  no  rightful  juris 
diction^  The  forms  of  law  with  which  it  clothed  its  proceedings  gave  no 
protection^  those  who,  assuming  to  be  its  officers,  were  the  instruments 
by  which  it  acted.  In  the  case  before  us,  trespass  would  have  been  the 
appropriate  remedy  ;  but  the  authorities  are  clear  that  case  also  may  be 
maintained.  Each  form  of  action  is  governed  by  its  own  principles.  It  is 
needless  to  consider  them,  as  none  of  the  exceptions  taken  relate  to  that 
subject.  Our  opinion  will  be  confined  to  those  which  have  been  specifically 
mentioned. 

1.  The  court  instructed  the  jury  to  acquit  the  defendants,  J.  \V.  Clay  and 
R.  W.  Coltart. 

^  There  was  some  evidence  against  both  of  them.  Whether  it  was  suffi 
cient  to^warrant  a  verdict  of  guilty  was  a  question  for  the  jury  under  the 
instructions  of  the  court.  The  learned  judge  mingled  the  duty  of  the  court 
and  jury,  leaving  to  the  jury  no  discretion  but  to  obey  the  direction  of  the 
court.  Where  there  is  no  evidence,  or  such  a  defect  in  it  that  the  law  will 
not  permit  a  verdict  for  the  plaintiff  to  be  given,  such  an  instruction  may  be 
properly  demanded,  and  it  is  the  duty  of  the  court  to  give  it.  To  refuse  is 
error.  In  this  case  the  evidence  was  received  without  objection,  and  was 
before  the  jury.  It  tended  to  maintain,  on  the  part  of  the  plaintiff,  the  issue 
which_they  were  to  try.  Whether  weak  or  strong,  it  was  their  right  to  pass 
upon  it.  It  was  not  proper  for  the  court  to  wrest  this  part  of  the  case,  more 
than  any  other,  from  the  exercise  of  their  judgment.  The  instruction  given 
overlooked  the  line  which  separates  two  separate  spheres  of  duty.  Though 
correlative,  they  are  distinct,  and  it  is  important  to  the  right  administration 
of  justice  that  they  should  be  kept  so.  It  is  as  much  within  the  province 
of  the  jury  to  decide  questions  of  fact  as  of  the  court  to  decide  questions  of 
law.  The  jury  should  take  the  law  as  laid  down  by  the  court,  and  give  it 
full  effect.  But  its  application  to  the  facts  —  and  the  facts  themselves  — 
it  is  for  them  to  determine.  These  are  the  checks  and  balances  which  give 
to  the  trial  by  jury  its  value.  Experience  has  approved  their  importance. 


610  APPENDIX. 

They  are  indispensable  to  the  harmony  and  proper  efficacy  cf  the  system. 
Such  is  the  law.  We  think  the  exception  to  this  instruction  was  well 
taken.* 

2.  The  other  instruction  to  be  considered  was,  substantially,  that  it  the 
plaintiff  had  himself  been  a  traitor  he  could  not  recover  against  those  who 
had  been  instrumental  in  his  arrest,  imprisonment,  and  trial  for  treason 
against  the  Confederacy  —  the  treason  alleged  to  consist  in  the  aid  which 
he  had  given  to  the  troops  of  the  United  States  while  engaged  in  suppress- 
ing-the  rebellion. 

As  matter  of  law,  we  do  not  see  any  connection  between  the  two  elements 
of  this  proposition.  Giving  aid  to  the  troops  of  the  United  States,  by  whom 
soever  given,  and  whatever  the  cirsumstances,  was  a  lawful  and  meritorious 
act.  If  the  plaintiff  had  before  co-operated  with  the  rebels  there  was  a  locus 
penitential,  which,  whenever  he  chose  to  do  so,  he  had  a  right  to  occupy. 
His  past  or  subsequent  complicity  with  those  engaged  in  the  rebellion  might 
affect  his  character,  but  could  not  take  away  his  legal  rights.  It  certainly 
could  not,  as  matter  of  law,  give  impunity  to  those  by  whose  instrumentality 
lie  was  seized,  imprisoned,  and  tried  upon  a  capital  charge  for  serving  his 
country.  Such  a  justification  would  be  a  strange  anomaly.  Evidence  of 
treasonable  acts  on  his  part  against  the  United  States  was  alien  to  the  issue 
before  the  jury.  To  admit  it  was  to  put  the  plaintiff  on-  trial  as  well  as  the 
defendants,  the  proofs  upon  the  question  thus  raised  might  be  more  volu 
minous  than  those  upon  the  issue  made  by  the  pleadings.  The  trial  might 
be  indefinitely  prolonged.  The  minds  of'  the  jury  could  hardly  fail  to  be 
darkened  and  confused  as  to  the  real  character  of  the  case  and  the  duty  they 
were  called  upon  to  discharge.  The  guilt  of  the  plaintiff,  if  established, 
could  in  no  wise  affect  the  legal  liability  of  the  defendants ;  nor  could  the 
fact  be  received  in  mitigation  of  damages.  It  is  well  settled,  that  proof  of 
the  bad  character  of  the  plaintiff  is  inadmissible  for  any  purpose  in  actions 
for  malicious  prosecution.t  All  the  evidence  upon  this  subject  disclosed  in 
the  bill  of  exceptions  was  incompetent,  and  should  have  been  excluded  from 
going  to  the  jury.  This  instruction  also  was  erroneous. 

Judgment  reversed,  and  the  cause  remanded  to  the  court  below,  with  an 
order  to  issue  a  venire  de  novo. 


BIGELOW  v.  FORREST,  9  Wallace,  339. 

In  this  case  the  court  decide  that  the  confiscation  act  of  17th  July,  1862, 
is  to  be  construed  in  connection  with  the  joint  explanatory  resolution  of  the 
same  date  (12  Stat.  at  Large,  627),  and  that  upon  a  decree  of  condemation 
under  this  act,  all  that  could  be  sold  was  a  life  estate  of  the  criminal. 

The  learned  reader  is  referred  also  to  the  following  cases  :  — 

McKee  v.  U.  S.,  8  Wallace,  168.     The  Ouachita  Cotton  Case,  6  ib.  521. 

The  U.  S.  v.  Lane,  8  ib.  185.  Union  Ins.  Co.  v.  U.  S.,  6  ib.  765. 

Morris'  Cotton,  8  ib.  507.  Armstrong's  Foundry,  6  ib.  769. 

*  Aylwin  v.  Ulmer,  12  Massachusetts,  '22 ;  New  York  Fire  Insurance  Company  v.  Wai- 
den,  12  Johnson,  513;  Utica  Insurance  Company  v.  Badger,  3  Wendell,  102;  Tufts  v.  Sea- 
linry,  11  Pickering,  HO;  Morton  v.  Fairbanks,  Ib.  308;  Fisher  v.  Duncan,  1  lleuing  and 
Munford,  502;  Schucliardt  v.  Aliens,  1  Wallace,  359. 

t  1  Greenlcaf's  Evidence,  §  55. 


(  UNIVERSITY   1 


Of 

' . 


INDEX 


ABANDONED   PROPERTY. 

claim  to,  by  a  rebel  who  has  taken  the  oath  of  amnesty,  &c., 

(S.  O.  535.) 382,  383 

statutes  relating  to.     See  Index,  "  Capture." 

see  act  March  3,  1863,  and  July  2,  1864,  relating  to. 

land  in  rebel  States  set  apart  for  freedmen,       ....     474 

see  act  March  3,  1865,  ch.  90,  sec.  4,  relating  to. 

letter  to  G.  "W.  Julian,  relating  to, 460 

act  July  16,  1866,  ch.  200,  freedman's  bureau,  relating  to.    See 

Index,  "  Freedman's  Bureau." 

see  "  Military  Government  and  Reconstruction,"  note,  .  .  427 
slaves,  when  deemed  captives  of  war,  .  .  .  .  .114 

act  June  27,  1868,  relating  to,  see  note, 182 

officers  who   have  administered  acts  of  Congress,  relating  to 
captured  or  abandoned  property,  protected   from    suits 

and  prosecutions, 182 

see  act  March  3,  1863,  and  1868,  ch.  267,  referred  to  in  note,  .  182 
policy  recommended  to  the  government  in  relation  to,  .  .  469 
note  on  the  right  of  capture  of  enemy's  property,  .  .  451 

see  United  States  v.  Anderson, 603 

ADAMS,   JOHN   QUINCY, 70,  71,  73,  77-81 

AFRICAN  DESCENT,  PERSONS  OF. 

may  be  rightfully  called  on  for  military  service,         ...       20 
laws  by  which  they  have  been  introduced  into  the  military  ser 
vice  of  the  United  States,  see  note  to  page  20,        .     478-494 
laws  equalizing  their  pay  with  that  of  white  soldiers,  see  note 

to  page  20, 478-494 

steps  taken  by  Congress  in  relation  to  the  abolition  of  slavery, 

see  note  on  slavery,         ......     393-400 

rights  conferred  on. them  by  amendments  of  the  Constitution, 
and  by  reconstruction  laws,  see  note  on  "  Military  Gov 
ernment  and  Reconstruction,"         .....     427 

see  Index,  "  Constitution,"  note  on  "  Slavery,"          .         .         .     393 

611 


612  INDEX. 

AFRICAN  DESCENT,   PERSONS   OF  —  continued. 

for  rights  of,  see  Index,  "  Civil  Rights."  , 

see  act  Xpril  9,  1866,  ch.  31. 

when  deemed  captives  of  war,  .......     114 

see  Index,  "  Captives." 

history  of  their  introduction  into  our  military  forces,         .      470-494 

excluded  from  the  regular  and  volunteer  army  by  law,  prior  to 

July  17,  1862 478-^94 

AID   AND    COMFORT  TO   THE  ENEMY. 

voluntary  residence  in  enemy's  country  is  made  prima  facie 

evidence  of,  by  stat.  1868,  ch.  71,  sec.  3,          ...     342 
ALABAMA,  STATE  OF. 

admitted  to  representation,      ...  ...     445 

ALEXANDER,   MRS.,  cotton  (2  Wallace,  417) 532 

ALIENS. 

division  of,  into  six  classes,      .......     333 

residing  in  this  country  owe  allegiance  to  the  United  States,    .     334 
may  be  punished  by  any  nation  for  crimes  committed  within  its 

jurisdiction, 334 

are  subject  to  the  jurisdiction  of  military  courts  and  to  military 

government.  .........     334 

engaged  in  commerce,  or  those  who  come  into  the  belligerent 

country  —  when  they  become  enemies,   .         .      332,  335,  352 
who  join  in  active  hostilities  against  the  United  States — their 

rights  and  liabilities,       .......     338 

who  have  voluntarily  enlisted  in  the  service  of  the  United  States,    338 
status  of  non-naturalized,  resident  here,  in  case  of  war  with 

their  native  country,      .......     338 

neutral,  non-naturalized,  who  have  exercised  the  franchise  of  cit 
izens  here,  liable  to  do  military  duty,      ....     339 

neutral,  domiciled  in  the  loyal  States,  degree  of  protection  ac 
corded  to, .         .         .     339 

naturalized  under  the  laws  of  the  United  States,         .         .         .     338 
neutral,  non-naturalized,  permanently  domiciled  in  rebel  States,     339 
when  subject  to  military  duty,  and  when  not  so  subject,    .          .     339 
neutral,  non-naturalized,  domiciled  in  rebel  States  before  the 
war,  and  not  withdrawing  themselves  and  their  property, 
are  alien  enemies,  ......     343,  352 

declared   subject  to  non-intercourse  acts  by  proclamation  and 

statutes, 343 

neutral  non-naturalized,   having  temporary  domicile  in   rebel 

States,  and  remaining  there  during  the  war,  .         .     345,  347 
who  withdrew  from  rebel  jurisdiction, 347 


INDEX.  613 


ALIENS  —  continued. 

having  mercantile  domicile  in  the  rebel  States,          .         .         .     346 
if  prevented  by  the  United  States,  or  those  acting  under  its  au 
thority,  from  withdrawing, 345 

travellers,  or  those  making  temporary  sojourn  here,  .         .     345 

neutral,  whether   domiciled  here  or  not,  not  having  exercised 

any  of  the  franchises  of  citizenship,  may  withdraw,         .     349 
though  neutral,  if  they  do  not  withdraw,  but  remain  subjects  de 
facto  of  a  hostile  government,  their  property  is  liable  to 
be  treated  as  that  of  an  alien  enemy,      .         .         .     349,  352 
owning  plantation   in    enemy's  country,  cannot  withdraw  its 

produce, 349,350 

opinions  of  Sir  William  Scott  and  of  the  Supreme  Court  of  the 

United  States  on  this  subject, 349 

liable   to  military  service  if  they  have  exercised  the  elective 

franchise,  or  other  franchise  of  citizenship,  .  .  .  339 
claim  to  indemnity  if  arrested,  or  imprisoned,  .  .  211,355 

arrested  and  imprisoned,  having  given  reasonable  cause  for  be 
lief  of  their  hostile  purposes,          .    .     .         .         .     354,  355 
how  affected  by  treaties  of  commerce,        ....     352,  354 
giving  reasonable  cause  to  believe  that  they  are  aiding  the 

public  enemy,  may  be  arrested,  ....  198,  354 
may  be  arrested  if  embarrassing  our  military  operations,  .  198,  354 
entitled,  for  such  arrests,  to  no  indemnity,  ....  365 
the  reason  of  this,  .........  365 

legality  of  arrests  of,  under  martial  law, 211 

arrested  rightfully  by  martial  law,  cannot  have  their  claims  for 

damage  adjudicated  by  civil  tribunals,  .  .  .  .211 
arrested  wrongfully,  not  always  entitled  to  redress,  until  the 

fact  of  alienage  is  made  known  to  the  government,          .     212 
right  to  export  lumber  after  blockade  was  declared,  without 
proof  of  having  owned  it  prior  to  the  war,  not  admitttecl 

(S.  O.  195), •     362 

arrest  of  non-neutral  aliens,  claim  of  indemnity  for  (S.  O.  357),     365 
claims  of  indemnity  against  payment  to  the  United  States  of 
rent  of  property,  in  New  Orleans,  of  a  rebel  enemy  (S.  O. 

No.  362), 368 

serving  in  the  rebel  army  not  deprived  of  the  benefit  of  the 
plea  of  alienage,   as   against  the  claim  of   the  United 
States  to  their  military  service  (S.  O.  433),    .         -     354,  374 
voluntarily  enlisting  in  our  service,  not    entitled  to  discharge 

(S.  O.  448), -374 

claims  of,  since  the  war  ;  draft  of  a  bill  proposed  for  that  purpose, 

and  remarks  (S.  O.  518),         ......     379 


614  INDEX. 

ALIENS  —  continued. 

residing  permanently  in  rebel  districts,  have  no  claim  for  prop 
erty  captured  or  injured  in  the  war  by  United  States 
forces  (S.  0.  731),  .  .  .  .  .  .  .387 

forced  into  rebel  service,  captured  by  the  United  States,  wheth 
er  entitled  to  discharge  (S.  O.  935),  .  .  .  .  388 

not  exempt  from  enrolment  or  draft  in  our  forces,  if  they  have 
assumed  rights  of  citizenship,  by  voting  at  any  election 
in  any  State  or  Territory.  Act  of  February  24,  1864, 
ch.  13, 339 

of  twenty-one  years  of  age,  who  have  served  in  our  army,  and 
have  been  honorably  discharged,  having  lived  one  year 
in  the  United  States,  may  be  naturalized,  &c.  See  act 
July  17,  1862,  ch.  200,  sec.  21. 

see  act  July  27,  1868,  ch.  276,  disqualifying  them  from  main 
taining  actions  against  the  United  States,  or  against 
any  officer,  for  certain  acts. 

not  to  maintain,  in  any  United  States  or  State  court,  against 
the  United  States  or  against  any  person,  for  any  act 
done  or  omitted,  under  certain  acts  of  Congress  relat 
ing  to  captured  or  abandoned  property,  &c.f  see  Stat. 
1868,  ch.  276. 

certain,  may  prosecute  claims  against  the  United  States,  in  the 
Court  of  Claims.  See  stat.  1868,  ch.  276. 

not  residing  in  the  Uuited  States  owe  no  allegiance  to  our  gov 
ernment,  .  .  .  .  .  ...  .  .  322 

distinction  between  such  aliens  and  citizens  who  are  public 

"  enemies,''  in  relation  to  their  obligations  and  liabilities,  322 

AMENDMENTS.     See  Index,  "  Constitution." 

AMNESTY. 

property  of  rebels    refusing    amnesty  should    be    confiscated  ; 

letter  to  Hon.  G.  AV.  Julian, 473 

as  bestowed  by  President  Johnson, 469 

see  Ex  parte  Garland, 565 

when,  on  whom,  and  on  what  terms  to  be  bestowed,  is  a  ques 
tion  of  public  policy,  see  Index,  "  Policy  of  the  Govern 
ment." 
proposed  by  President  Lincoln,         ......     254 

how  far  recommended,      ........     470 

if  refused  by  malignant  enemies,  their  property  should  be  con 
fiscated,  473 

dictates  of  humanity  and  of  statesmanship,        ....     472 
ANDEPcSON  ats.  United  States  (9  Wallace  64),         ....     603 


INDEX.  615 

APPEAL. 

the  Supreme  Court  has  no  jurisdiction  to  entertain  appeals  from 
the  judgments  of  military  courts  held  during  the  war, 
see  act  March  2,  1867,  ch.  165,  ....  288-290 

as  to  right  to  hear  and  decide,  on  appeal,  all  questions  of  law 

growing  out  of,      ........     536 

see  civil  rights  act,  April  9,  1866,  ch.  31,  sec.  10. 

see  Milligan's  case,  ........     536 

notes  on, .  460 

see  Index,  "  Provisional  Courts." 

see  the  Grapeshot, 598 

see  Vallandigham's  case, .  524 

see  Ex  parte  Garland,      ........     665 

see  Ex  parte  Yerger  (9  Wallace,  85). 
ARKANSAS,  STATE  OF. 

admitted  to  representation  in  Congress,    .         .  .      249,  445 

ARMY,  REGULAR. 

call  of  the  President  for  increase  of,  May  3,  1861,  .  .  .  478 
colored  men  excluded  from  by  law  prior  to  1862,  .  .  478-480 
regulations  of  the  army  made  by  the  War  Department  have 

the  force  of  law, 479 

new  army  regulations  of  August,  1861,     .         .         .         .         .     479 

such  regulations  excluded  from  the  army  slaves  and  colored  men,     479 
opinion  of  Attorney  General  Gushing,  and  decision  of  the   Su 
preme  Court,          .         .         .         .         .         .         .     •    .     479 

exclusion  of  colored  soldiers  from,  rigidly  enforced  by  General 

McClellan,      .         .         . 480 

free  white  males  only  could  belong  to.  prior  to  July  17,  1862,  478^180 
ARNOLD,  HON.  I.   N.,  of  Illinois. 

note  on  slavery,        .........     393 

bill  to  prohibit  slavery  in  the  Territories,          ....     396 

ARRESTS  BY   MILITARY  AUTHORITY.     See  "  Military  Arrests." 
ARTICLES   OF  WAR.     See  "  Capture." 

see  note  to  forty-third  edition,  "  Laws   for  raising  and  organ 
izing  Military  Forces.     .......     478 

see  stat.  April  10,  1806. 
ASHLEY,  HON.  J.  M.,  of  Ohio. 

proposition  to  amend  the  Constitution  (13th  amendment)  abol 
ishing  slavery,        .....•••     398 

letter  of,  to  the  Secretary  of  War  on  military  government,        .     259 

ATTACHMENTS. 

of  sequestered  property  by  claimants  against  rebel  owner,  effect 

of  (S.  O.  730),       '. 386 


616  INDEX. 

ATTAINDER. 

bills  of, 84 

bills  of,  in  England, 84 

the  confiscation  act  of  July  17,  1862,  is  not  a  bill  of  attainder, 

or  ex  post  facto  law,       .         .         .         ,         .         .         .116 
this  act,  and  the  joint  resolution  which  accompanied  it,  are  to 

be  construed  as  one  act,  and  provide  for  forfeiture  of 

nothing  beyond  a  life  estate  of  the  offender,  .         .      116 

this  view  affirmed  by  the  Supreme  Court  in  1870,  in  Bigelow  v. 

Forrest,  Appendix,         .         .         .         .         .         .         .610 

see  U.  S.  v.  Latham,  referred  to, 110 

three   modes    of   attainder   practised   in    England   in   former 

times,  see  introduction  to  chap,  v.,         ....       915 

punishment  by  attainder, 84 

attainders  prohibited  as  inconsistent  with  constitutional  liberty,       85 
bills  of  attainder  abolished,       ........       86 

what  is  a  bill  of  attainder, 86 

bills  of  pains  and  penalties,       .......       87 

ex  post  facto  laws  prohibited ;  bills  of  pains  and   penalties,  as 

well  as  attainders,  unconstitutional,        .         .         .         .88 

attainders  in  the  Colonies  and  States,       .         .         .         .        89,  122 

bills  of  attainder,  how  recognized,     .         .         .         .         .         .91 

*  nature  of,  stated  by  the  majority  of  the  Supreme  Court,  in  Cum- 

mings  v.  State  of  Missouri,    .         .          ....     556 

and  by  the  Court  in  Ex  Parte  Garland,     .....     565 

see  Introduction  to  Chap.  V.  relating  to,  .         .         .         .          93,  94 


B. 

BATES,  EDWARD,  Attorney  General. 

remarks  on  his  opinion  on  the  question  of  payment  of  colored 

volunteers, 491,  492,  507 

on  construction  of  the  two  acts  of  July  17,  1862,  chs.  195  and 

201, 491,  492,  496 

BATTLE. 

case  of  the,  see  6  Wallace,  498. 
BELLIGERENTS. 

rebels  may  be  treated  by  the  government  as  such,    Note  A,  and  44,  215 

if  rebels  are  treated  as  such  by  the  government,  their  personal 
property  of  all  kinds  may  be  captured  or  confiscated  by 
the  laws  of  war,  .......  48,  54-65 

if  rebels  are  recognized  as  belligerents  under  the  law  of  nations, 
the  personal  property  of  all  persons,  citizens  or  aliens, 
voluntarily  and  permanently  residing  in  territory  under 


INDEX. 


617 


BELLIGERENTS  —  continued. 

the  control  of  the  enemy,  is  liable  to  capture  and  confis 
cation,  48,  56,  58 

see  "  War  Claims,"  "  Solicitor's  Opinion,"  "  Public  Enemies." 
their  ships  and  other  property  on  the  sea  may  be  captured  and 

condemned  as  prizes, 48,  57 

see  "  Capture." 

slaves  of  belligerents  in  civil  war  may  be  emancipated  by  the 

law  of  nations, 68>  69 

see  "  Slaves." 

this  right  of  emancipation  confirmed  by  authority  and  usage 
of  nations,      ...... 

see  "  Indemnity  ;  "  see  also  note,  on  "  Slavery," 

this  right  sanctioned  by  the  practice  of  the  government  of  the 

United  States, 

the  real  estate  of  belligerent  rebels  situated  in  this  country 
may  be  confiscated  or  sequestered  by  the  government 

jure  belli, 58~62 

so  as  to  the  real  estate  of  aliens  voluntarily  and  permanently 

residing  in  enemy's  territory,          .... 
decision  of  the   Supreme  Court  of  the  United  States  on  this 

point,  in  8  Cranch,  123, 
Chancellor  Kent's  opinion  on  the  same,    . 
the  persons  of,  may  be  captured  and  held  as  prisoners  of  war, 

50,  53,  57,  240 

property  of,  is  not  held  to  be  confiscated  as  the  necessary  re 
sult  of  conquest,  but  this  must  be  done  by  military  or 
legislative  act  of  the  conquering  power,  56,  59 

in  civil  or  international  war,  are  all  individually  and  collectively, 
as  members  of  a  government,  enemies  of  each  other, 

61,  239,  240,  293-306 

right  to  confiscation  of  enemy's  property,  whether,  and  how  far 
it  shall  be  used,  is  for  the  government  to  decide, 

62,  65,  470,  474 

suggestion  that  confiscation  of  property  of  slaveholders  would 
affect  only  about  one  fiftieth  part  of  the  inhabitants  of 
rebel  slave  States, 
comp-arison  of  their  number  with  that  of  the  old   lories  of  the 

revolution 

whether  rebels  shall  be  deemed  as  such,  and  shall  become  en 
titled  to  the  privileges  of,  depends  in  the  first  instance 
on  the  decision  of  the  President,  •  240>  42° 

whether  belligerent  rights   shall  be  permanently  conceded  to 

78 


618  INDEX. 

BELLIGERENTS  —  continued. 

rebels  in  civil  war,  depends  upon  the  policy  of  our  gov 
ernment,        .........     240 

see  "  Policy  of  the  Government." 

rebels  in  civil  war  may  be  treated  as  such,  or  as  subjects  liable 

to  all  the  penalties  of  municipal  laws,     ....       44 

authorities  cited  on  this  point,  ......       44 

rebels  have  in  fact,  in  several  respects,  been  treated  as  such  by 

the  government, 45,  292 

blockade  of  rebel  ports  has   been  set  up  under  the  law  of  na 
tions,     ..........       45 

the  Constitution  defines  "  treason  "  as  levying  war,  and  there 
fore  holds  traitors  as  subjects  and  belligerents,       .         .       46 
"  a  rebel  does  not  cease  to  be  a  subject  because  he  has  turned 

traitor," 46 

if  traitors  are  allowed  belligerent  privileges,  they  must  be  sub 
jected  to  belligerent  disabilities,        ....     46,  293 

cannot  assume  inconsistent  characters,         .         .         .         .46,  293 

government's  right  to  treat  rebels  as  belligerents,  or  as  traitor 
subjects,  relieves  the  administration  from  embarrassment, 
and  why,        .........       45 

government  may  elect  its  own  policy  as  to  individuals,     .         .       45 
whether  to  be  deemed  as  mere  insurgents  or  as  public  enemies, 

is  a  political  question,  ....         44,  293,  294 

whether  entitled  to  civil  or  political  rights  in  the  Union  is  a  po 
litical  question,  to  be  decided  by  the  political  department 
of  our  government,       53,  242,  244,  252,  292,  293,  295,  306, 425 
may  be   subjected  by  the  conquerors  to  military  government, 

see  title  "  Military  Government." 
this  doctrine  doubted  and  denied  in  1862,  when  this  essay  was 

first  published,       ........     425 

see  note  on  Belligerents, 425 

principle  now  established, 425,  426 

cases  on  these  points  printed  in  this  work,        ....     427 

Cherokee  Nation  v.  Georgia, 529 

Rhode  Island  v.  Massachusetts, 530 

cases  decided  in  the    Supreme  Court  since  the  publication  of 

the  later  editions  of  this  essay  (see  Appendix),       .      512,  610 
see  "  Supreme  Judicial  Court,  Cases  decided  by,"     .         .       512,  610 

exchange  of,  as  prisoners  of  war, 45,  292 

note  to  forty-third  edition,  on  Belligerents,        ....     425 

Georgia  v.  Stanton, 445,  588 

The  Venice, 532 

Mrs.  Alexander's  Cotton,  532 


INDEX.  619 

BELLIGERENTS  —  continued. 

Mississippi  v.  Johnson,  ...  .  579 

The  Peterhoff,  ....  .     582 

The  William  Bagaley,       ...  .583 

Mauran  v.  Insurance  Co., 587 

the  acts  of  the  Confederate  States  relating  to,  .         .         .     409-425 
subjects  of,  cannot  transfer  allegiance  flagrante  bello,  so  as  to 

protect  their  trade,         .......     334 

or  neutrals  violating  blockade,  their  ships  and  cargoes  subject 

to  seizure  and  condemnation  by  prize  courts,  note  on  p.        45 
BELLIGERENT  RIGHTS  IN  CIVIL  WAR. 

possessed  by  this  government  against  rebels  in  arms,        .    44,  53-65 
what  they  are  is  to  be  ascertained  by  the  law  of  nations,  .         .       47 
law  of  nations  above  the  Constitution,      .....       46 

among  these  belligerent  rights,  according  to  the  law  of  nations, 

are  the  following  :  — 
the  right  to  capture  the  persons  of  the  enemy,  and  hold  them  as 

prisoners  of  war,          ....    50,  53,  57,  240 

to  blockade  their  ports  of  entry  (see  "  Blockade"),    45,  296 
to    pass    acts    of  non-intercourse    (see    "  Non-inter 
course "),    299,303 

to    capture   enemy's   personal  property  on  land  (see 

"  Capture "), 48 

to  destroy  the  same, 48 

to  capture  personal  property  of  all  persons,  citizens 
or  aliens,  friendly  or  hostile,  voluntarily  and  per 
manently  residing  in  enemy's  districts  (see  "  Pub 
lic  Enemy  "),  56-62 

to  conquer  and  hold    the    lands    or   territory  of  the 

enemy  by  military  forces,    .....       62 
to  confiscate  the  enemy's  real  estate,  .         .         .58 

to  confiscate  the  real  estate  of  aliens  voluntarily  and 

permanently  adhering  to  the  enemy,  ...       58 
to  emancipate  enemy's  slaves  by  the  war  power  of  the 

President, 66 

to  emancipate  enemy's  slaves  by  the  belligerent  law  of 

nations,       ........       69 

this  right  confirmed  by  authority  and  usage,  .         .       74 
this  right  confirmed  by  usage  of  this  government, .       74 
to    confiscate    the    real    and    personal    estate   of  the 

enemy, 48-62,240 

see  letter  to  Hon.  G.  W.  Julian,  •     469 

to  confiscate  that  of  all  permanent  residents,  &c.  (see 

"  Aliens,"  see  «  War  Claims),    .         .         -  60,  61,  240 


620 


INDEX. 


BELLIGERENT   RIGHTS   IN   CIVIL  WAR  — continued. 

the  right  to  deprive  the  enemy,  when  conquered,  of  all  civil 
and  political  rights  under  the  Constitution  and 
government  of  the  United  States,  saving  to  them 
only  the  rights  of  a  conquered  country  under  the 
laws  of  war,  .  .  53,  242,  244,  252,  293,  295 
to  subject  them  to  military  governments  (see  "  Mili 
tary  Government"). 

see  notes  to  forty-third  edition,  .         .         .     425 

how  belligerent  rights  are  to  be  acquired,  ....  38 
declaration  of  war  not  necessary  to  acquire  them,  ...  38 
the  inauguration  of  civil  war  gives  them  to  the  government  as 

against  rebels,  40 

this  principle  recognized  in  the  prize  cases  by  the  Supreme 

Court.  ....       141,  156, 238,  243 

recognition   of  a  state  of  civil  war  by  the  political  department 

gives  them  to  the  government,       .         .       141-156,  238-243 
this  principle  recognized  by  all  the  judges  in  the  prize  cases,  see 

recent  Cases  decided  in  the  Supreme  Court,    141-156,  238-243 
to  the  same  effect  (Appendix),        ....      531-612 
whether  belligerent  rights  shall  or  shall  not  be  used  against, 
or  conceded  to,  the  enemy,  is  a  question  of  public  policy, 
and  is  to  be  decided  by  the  political  department  of  the 

government, 53,  240,  247,  293,  294 

certain  of  them  have  in  fact  been  conceded  to  rebels,  and  exer 
cised  against  them, 291,  292 

policy  recommended  as  to  the  use  of,  in  relation  to  the  political 

rights  of  rebel  States, 234,  248 

policy  recommended  as  to  confiscation, 470 

policy  recommended   as  to   the   liberation  of  enemy's  slaves 

(preface,  p.  vi.), 131}  14o 

policy  recommended  as  to  cutting  up  large  estates.  .  .  .  470 
policy  recommended  as  to  reconstruction,  .  .  .  248,  249 

certain  rules  of  the  law  of  war, 334,335,336 

of  seizure,  of  capture,  &c.,  recognized  by  the  Supreme  Court,  .     240 

conceded  by  foreign  countries  to  rebels, 333 

legal  effect  of  such  concession, 333-345 

of  the  United  States  against  property  of  alien  merchant,  how- 
determined,  .         .         .         :  348 
as  against  neutral  aliens  following  from  the  status  of  the  inhab 
itants  of  rebel  States,  as  public  enemies,         .         .         .351 
of  public  enemies  against  the  government,         ....     471 
see  «  Belligerents,"  «  Capture,"  «  Confiscation,"  "Trize,"  note 

on  "  Reconstruction,"  and  note  on  "  Belligerent  Rights,"     425 


INDEX. 


621 


BELLIGERENT  RIGHTS  IN   CIVIL   WAR  — continued. 

conceded  to  the  rebels  by  our  government 45 

exchange  of  prisoners  of  war,  ...•••       45,  299 
exchange  of  persons  as  prisoners  of  war,  who  had  been  con 
victed  of  piracy, 298,  299 

conceded  by  terms  of  surrender  of  Generals  Lee  and  Johnston's 

armies  to  General  Grant, 299 

such  terms  have  been  ratified  by  the  government,  note  to         .     299 
see  Index,  "  Confederate  Laws." 

see  "  Cases  decided  in  Supreme  Court,"  Appendix,    .         .     512,  610 
effect  of  acknowledging  the  rebels  as  belligerents  by  foreign 
governments,  on  their  claims  against  the  United  States 
for  indemnity  against  injuries  to  persons  or  property  of 
aliens  inflicted  by  the  hostile  operations  of  the  enemy, 
see  chapter  on  War  Claims  of  the  United  States,    .      331,  358 
Bigelow  v.  Forrest,  9  Wallace,  339,  Appendix,  610 

BINGHAM,  HON.  JOHN  A.,  of  Ohio. 

14th  amendment  to  the  Constitution,         .... 
see  civil  rights  act,  April  9,  1866,  ch.  31,  .       . 

see  note  on  "  Slavery," 393 

BLOCKADE  OF  ENEMY'S  PORTS. 

by  act  of  our  government,         .......       45 

act  of  blockading  rebel  ports  is  using,  to  that  extent,  belliger 
ent  rights, 45 

under  the  law  of  nations,  can  lawfully  exist  only  when  there  is  a 
public  enemy  to  the  country  which  proclaims  and  en 
forces  it,  305 

proclaimed  by  President  Lincoln,  April  19,  1861, 

proclamation  of  April  27,  1861, 

proclamation  of  August  16,  1861,     . 

proclamation  of  July  1,  1862,    .... 

remarks  on  these  proclamations  of, 

breach  of,  '         *  .      *     29° 

officially  notified  to  foreign  powers  as  under  the  law  of  nations, 

effect  of, 45 

see  "  the  Circassian,"  Appendix,        .... 

BOLIVAR,  GENERAL, •      73 

BOMBARDMENT. 

of  Greytown,  injuries  suffered  thereby, 536 

Lord  Palmerston's  opinion  on, 

Attorney  General's  opinion  on, 
of  Uleaborg,  Palmerston's  opinion.  . 
of  Copenhagen,  Palmerston's  opinion, 
BROUGHAM,  LORD,  on  military  prize, 48 


622 


INDEX. 


c. 

CABINET  OFFICE. 

new  cabinet  office  proposed,     ......      465,  466 

CALIFORNIA. 

constitution  of, 314 

admission  of,  to  the  Union,      ......  314 

CARTEL. 

see  Index,  "  Capitulation,"  "  Belligerent  Rights,"  "  Belligerents." 
CAPITULATION. 

of  rebel  prisoners  at  Hatteras,  effect  of, 45 

of  armies  of  General  Lee  and  General  Johnston,  effect  of,  see 

note  to  page  ........     299 

of  enemies  by  cartel,  effect  of, 299 

CAPTIVES   OF   WAR. 

slaves  of  rebels  who  escaped  from  their  masters,  so  declared 

by  stat.  July  17,  1862,  ch.  195, 114 

slaves  deserted  by  rebels  and  coming  under  our  control,  .         .114 
slaves  found  in  places  once  occupied  by  rebel  forces,  and  after 
wards    occupied   by  ours,  declared  to  be    such  by  act 

July  17,  1862,  ch.  195, 114 

public  enemies  captured  in  civil  war  are  such,  .         .         .       64,  167 

exchange  of  rebels  as  such, 45 

exchange  of  rebels  as,  by  cartel, 298,  299 

may  be  held  as  prisoners  of  war, 61,167 

see  note  on  the  "  War  Powers  used  by  the  Government,"         .     391 
for  political    rights    of,    see    "  Belligerents,"    "  Policy  of   the 

Government,"  &c. 
CAPTURE. 

title  by,    ......  4$ 

prize  courts  determine  right  of,  when  made  on  the  high  seas,    .       48 
of  all  personal  property  of  all  permanent  residents  in  the  ene 
my's  territory,  whether  friendly  or  hostile,  is  lawful,  56.  58, 240 
right  of,  recognized  by  the  Supreme  Court,        ....     240 

note  to  43d  edition,   upon  the  right  of   capture   of   enemy's 

property  jure  belli, 451-455 

rights  of,  claimed  in  this  essay, 451-455 

cautious  steps  by  which  the  Supreme  Court  advanced  towards 

a  recognition  of, 451-455 

sketch  of  the  line  of  cases  in  our  courts,  by  which  this  doctrine 

relating  to  prizes  was  settled,         ....     451,455 
Dunlop,  J.,  Sprague,  J.,  Betts,  J.,     .         .         .  .     451,  455 

points  first  finally  decided,  1863-4,  in  prize  cases,  141-156,  451,  455 


INDEX. 


623 


CAPTURE  —  continued. 

judicial  decisions  as  to,  on  land,        .  .  •  -156,  451,  45o 

progress  of  public  and  judicial  opinion,  .  .  -156,  451,  4oo 

various  acts  of  Congress  relating  to,  .  .  141-156,  451,  455 

141-156,  451,  455 
comments  on.  ,  ' 

articles  of  war  as  to, 

right  of,  in  its  amplest  extent,  has  been  recognized  and  en 
forced  by  the  courts,  and  sanctioned  by  the  government, 
since  the  publication  of  the  10th  edition  of  this  essay,    .     451 
see  "  The  Battle,"  6  Wallace,  498,  . 
see  "  Armstrong's  Foundry,"  6  Wallace,  769. 
see  note  on  War  Powers,  . 

see  "United  States  v.  Republican  Banner  Office,"  11  Pitts'  Leg. 

Reg.  152. 

see  Mrs.  Alexander's  Cotton  case  (2  Wallace,  417),  Appendix,      o32 
action  of  Confederate  Congress  on.     See  "  Confederate  Laws." 
confederate  statute  of  May  6,  1861,  relating  to,        ...     455 
subsequent  Confederate  statutes  upon,     . 
the  legal  distinction  stated  as  to  the  modes  of  acquiring  title  by 

captures  on  land  and  on  the  seas, 
this    distinction    recognized  in  several    recv    t   cases,   by  the 

United  States  courts,     . 

Swayne,  Mr.  Justice,  opinion  of,  in  Coolidge  v.  Guthrie,    . 
of  abandoned  property,  in  case  of,  or  of  receipt  of  property 
from     persons     in     insurrectionary    districts,    captors, 
whether  soldiers  or  seamen,  must  turn  it  over  to  a  gov 
ernment  agent.    See  act  March  3,  1863,  sec.  6.    See  also 
act  July  2,  1864.     See  United  States  v.  Anderson, 
rules  concerning,  on  land  or  water,  may  be  made  by  Congress, 
under  the  specific  authority  of  the   Constitution,  art  1, 

i     i t  25, 28 

sec.  8,  ch.  11, 

A  --\  •} 

See  cases  cited  page 

captured  and  abandoned  property  :  officers  and  others  engaged  ii 

administering  laws  relating  to,  protected  from  suits  and 

prosecutions  for.     See  act  1868,  ch.  276.        . 
creditors  of  enemies  whose  property  has  been  captured  by  the 

United  States,  their  rights,    . 
of  property  of  non-neutral  British  subjects, 
of  military  supplies  in  rebel  territory, 
of  corn,  claim  by  vendee  of  rebels  to  proceeds  of,       . 
effect  of  proceedings  of  the  United  States  in  this  case,        .         . 
of  enemy's  property  is  one  of  the  well-settled  belligerent  rights, 
of  provisions,  £c.,  by  our   army,  from  persons  claiming  to  be 
loyal,  but  residing  in  enemy's  country,  not  allowed,        . 


624 


INDEX. 


CAPTURE --continued. 

oath  of  loyalty,  its  effect, 353 

General   Grant's  permit  to    trade  with   the  enemy,   its  effect 

on»  363 

see  Ouachita  Cotton  Case,  6  Wallace, 
see  also  McKee  v.  United  States,  9  Wallace,  166. 
forcible,  of  arms  from  French  aliens,         ....  354 
forcible,  of  contraband  articles,         .         .         .  354 
of  property  claimed  to  have  been  bought  under  treasury  per 
mit,  &c.,         .                  378 

proofs  required  in  case  of  claimant  of,  .         .         .  373 

of  coin  on  the  person  of  a  public  enemy  on  land,      .         .         .381 
opinion  of  Judge  Giles  on,        .....  331 

of  cotton   of  aliens  permanently  residing  in  enemy's  country, 

and  not  withdrawing  in  reasonable  time,        .         .         .     384 
belligerent  right  of  (S.  O.  951),        .         .         .  339 

right  of,  illustrated  in  several  cases  in  Solicitor's    Opinions, 

see  pages       .  358-389 

captured  arms,  &c.,  &c.,  act  March  3,  1863,  ch.  86,  sec.  2. 
see  joint  resolution  of  Congress,  March  30, 1868,  No.  25,  which 
provides  that  refusing  or  neglecting  to  pay  over  the  pro 
ceeds  of  sales  of  captured,  &c.,  property,  shall  be  deemed 
embezzlement,  and  punished  as  such. 

see  note  to  43d  edition  on  the  War  Powers,     .         .         .         .391 

right  of  capture  of  enemy's  property,  Note,       ....     451 

as  to  the  time  when  the  rebellion  was  suppressed  (viz.,  August 

20,  1866),  with  reference  to  claims  under  the  act  relating 

to  captured  and  abandoned  property,  &c.,  see  the  United 

States  v.  Anderson, 603 

CASES. 

decided  by  the  Supreme  Court,  and  printed  in  whole  or  in  part 
in  the  Appendix  to  this  work,  see  "  Courts,  Judicial,"  of 

the  United  States, 512,  610 

CARLISLE,  SENATOR, '497 

CHASE,  CHIEF  JUSTICE. 

letter  to  President  Johnson,  February,  1865,  giving  reasons 

for  declining  to  hold  a  civil  court  in  Virginia,         .         .     595 
remarks  to  members  of  the  bar  at  Halcigh,  N.  C.,  on  opening 

the  Circuit  Court,  June  6,  1867, 596 

as  to  military  authority,  civil  jurisdiction,  war  powers,  and  the 

powers  of  courts  of  law,  Appendix,         ....     596 
opinions  of  the  Supreme  Court  delivered  by,     .      550,  579,  598,  601 
CHEROKEE  NATION  v.  STATE  OF  GEORGIA. 

6  Wallace,  73,  ...  529 


INDEX.  625 

CIRCASSIAN,  THE,  2  Wallace,  150, 532 

CITIZENS   OF  THE   UNITED   STATES. 

slaves  not  deemed  by  the  Supreme  Court  of  the  United  States 

as  such  prior  to  1863, 371 

as  defined  by  the  civil  rights  act  of  April  9,  1866,  ch.  31,          .     399 
see  Index,  "  Civil  Rights." 

as  defined  by  the  14th  Constitutional  Amendment,  .         .         .391 
aliens  having  served  with  our  military" forces,  and  having  been 
*       honorably  discharged,  may,  under  certain  circumstances, 
become    such,    see   act   July  17,    1862,    ch.    200;    see 
"  Alien." 
when  indemnity  is  paid  to,  for  private  property  appropriated  to 

public  use, 16-22,  340 

when  indemnity  is  not  allowed  for  property  destroyed,       16-24,  340 
become  alien  enemies,  in  respect  to  property  and  capacity  to 

sue  if  permanently  residing  in  hostile  country,       .         .     337 

exceptions  to  this  rule, 340 

see  stat.  1868,  ch.  70,  sec.  3. 

when  declared  by  law  public  enemies,  see  "  Public  Enemies." 
CIVIL   RIGHTS. 

constitutional  guarantees  of,  not  always  applicable  in   time  of 

war, 49 

true  application  of  the  guarantees  of,        .         .     '    .         .         .50 
whether  allowed  to  rebel  belligerents  must  be  decided  by  the 

political  departments  of  the  government,        ...       53 

see  note  to  43d  edition, 425 

changed  by  martial  law,  ......  64 

see  "  Martial  Law." 

of  loyal  citizens  in  loyal  districts  are  modified  by  a  state  of 

war, .         .          .  51-53 

not  acquired  under  the  Constitution  by  inhabitants  of  foreign 
territory  ceded  by  treaty  to  the  United  States,  or  ob 
tained  by  conquest, 26(i 

act  April  9,  1866,  ch,  31,  relating  to,  defines  certain  civil  rights, 

note,      ..........     399 

declares  who  are  entitled  to  citizenship,  and  certain  rights 

of, 399 

see  note  on  slavery, 393 

provides  penalty  for  aiding  escape  of  offenders  against,      .     399 
provides  for  appeal  in  eertain  cases  to  the  Supreme  Court 

of  the  United  States, 399 

gives  jurisdiction  to  United   States  courts  over  offences 

against 399 

79 


626  INDEX. 

CIVIL   RIGHTS  —  continued. 

penalties  for  depriving  persons  of  rights  under,          .         .     399 
penalties  for  preventing  arrests  of  offenders  under,    .         .     399 

of  citizens  generally,  declared, 399 

secured  by  amendments  of  the  Constitution,     ....     399 

see  "  Amendment,"  art.  XIV. 399 

whether  to  be  allowed  to  a  public  enemy  is  a  question  to  be  de 
cided  by  the  political  department  of  the  government,  see 
"  Policy  of  the  Government,"  "  Public  Enemy,"  "  Bel 
ligerents." 

CIVIL   WAR. 

distinction  between  the  objects  and  the  means  of,      ...  7 
as  means  of  carrying  on,  it  has  become  necessary  and  lawful  to 

do  certain  acts,       ........  8 

if  freeing  slaves  becomes  expedient,  what  to  be  done,        .         .  8 

leading  questions  of,  stated, 13 

how  it  may  be  commenced,       .......  38 

when,  within  the  meaning  of  the  Constitution,  it  exists,    .         .  38 

declaration  of  war  not  necessary  in  case  of,        .         .         .       3,  8,  39 

duty  of  the  President  in  case  of, 40 

entitles  the  parent  government  to   treat  its  rebellious  citizens 

as  belligerents,  or  as  public  enemies,      ....  44 

may  be  against  the  government  or  by  the  government,      .         .  43 

acts  of,  by  rebels,     . 43 

exists  by  act  of  rebels,      ........  44 

rights  in,  acquired  by  the   United  States  against  the  rebels, 
see  title  "  Belligerents,"  "  Belligerent  Rights  in  Civil 
War,"  "Policy  of  the  Government,"  "Confederate  Laws," 
"Capture,"    "Confiscation,"    "Constitution,"    "War," 
"  Slaves,"    "  Slavery/'    "  Compensation     for     Slaves," 
"  War  Claims,"  "  Aliens,"  &c. 

see  "  War  Powers  used  by  the  Government,"  ....  390 

"  Slaves  in  the  Army,"       .......  405 

note  on  "  Belligerents," 425 

note  on  "  Reconstruction,"         ......  427 

note  on  "Capture,"  .         .         .         .         .         .         .         •  451 

letter  to  Mr.  Julian, 469 

the  nature  of  our  contest, 230 

State  rights  in, 234 

attitude  of  the  government  in,  changed  by  the  progress  of  the 

contest,          .........  235 

the  rights  of  the  public  enemy  in,     ......  238 

reference  to  prize  cases  relating  to,  .         .         .         .         -         .  238 

how  long  it  may  justly  be  continued,         .....  261 


INDEX.  627 

CIVIL   WAR  —  continued. 

its  means  and  its  results,  .         .         .261 

its  results,  how  attained, 261 

what  we  gain,  and  what  rebels  lose  by  (letter  to  Hon.  G.  W. 

Julian), 409 

CLAIMS   AGAINST   THE   UNITED    STATES. 

for  indemnity  for  property  of  loyal  citizens  lawfully  appro 
priated  to  public  use,  under  the  provisions  of  the  Con 
stitution,  15,  16,  17,  18 

magnitude  of  claims  presented  to  the  Solicitor  of  the  War 
Department  for  damages  done  by  our  military  forces, 
see  letter  to  Hon.  E.  B.  Washburn,  .  .  .  .467 

vast  amount  of  claims  against,  disposed  of  by  the  recent  Con 
stitutional  amendments,  ......  400 

for  indemnity  for  slaves,  see  titles  "  Slaves,"  "  Slaveholders," 
"  Indemnity,"  "  Slavery,"  "  Constitutional  Amend 
ments." 

of  aliens  for  indemnity  classified,      ......     332 

see  "  Aliens." 

the  character  of,  especially  discussed  in  the  chapter  on   war 

claims. 332 

.  how  affected  by  concession  of  belligerent  rights,        .         .         .     333 

of  aliens  residing  within  the  arena  of  war,         ....     336 

test  questions  on  examination  of, 356,  357 

of  various  citizens  of  the  United  States,  see  titles  "  Solicitor 
of  the  War  Department,"  "  Abandoned  Property," 
"  Capture." 

in  any  suit  before  any  court  when  it  shall  become  material 
whether  a  person  did  or  did  not  give  aid  or  comfort  to 
the  rebellion,  the  stat.  1868,  ch.  71,  sec.  3,  provides 
that  the  burden  of  proof  of  loyalty  is  upon  the  party  who 
asserts  it,  and  voluntary  residence  in  the  rebel  States  is 
prima  facie  evidence  of  ha\ing  given  aid  and  comfort  to 
the  rebellion.  See  act  1868,  ch.  71,  sec.  3. 
CLIFFORD,  MR.  JUSTICE. 

opinion  of  the  Supreme  Court  in  the  "  Wm.  Bagaley,"  deliv 
ered  by, 583 

CONTRABAND  OF  WAR. 

military  supplies,   provisions,   &c.,  captured  by  our  troops   in 

enemy's  country,    ........     358 

see  case  of  Mrs.  Alexander's  Cotton,  .....     533 

see  "  Capture." 

see  note  on  "  Capture," 451,  455,  459 

case  of  Mrs.  Bass, 363 


628  INDEX. 

CONTRABAND    OF    WAR  —  continued. 

slaves  of  rebels  escaping  or  taking  refuge  within  our  lines,  or 
captured  from  their  masters,  or  deserted  by  them,  &c., 
or  found  by  our  forces  in  places  previously  occupied  by 
rebels,  are  declared  not  contraband  of  war,  but  cap 
tives  of  war,  by  act  of  Congress,  July  17,  1862,  ch. 

195,  sec.  9, 114 

see  Guthrie  v.  Coolidge, 591 

for  recent  cases  on  the  subject,  see  Appendix. 

GUSHING,  ATTORNEY  GENERAL,     .  .479 

COCHRANE,  ADMIRAL. 

his  proclamation,      ......  .70 

COLORED  MEN. 

excluded  from  the  regular  army  prior  to  1862,  .     478,  482 

excluded  from  the  militia  of  the  States  prior  to  1862,        .     478,  482 

excluded  from  the  volunteer  service  prior  to  1862,    .         .     478,  482 

see  "  African  Descent." 

see  "  Slavery  "  (note), 39^ 

steps  by  which  they  were  introduced  into  the  military  service, 
and  finally  entitled  to  equal  pay  with  white  soldiers 
(note), 478-494 

see  "  Military  Service." 

records  of  the  Adjutant  General's  office  show  that  there  were 
no  enlistments  of,  in  the  army  or  volunteer  service,  prior 
to  July  17,  1862, 489,  490,  491 

friends  of,  sought  to  obtain  equality  of  pay  with  white    troops 

in  1863  ;  why  they  failed,       ...  .491 

CLINTON,   SIR   HENRY,       ....  -69 

CLARK,   SENATOR  (N.   H.). 

bill  proposed  by,  combining  emancipation  of  enemy's  slaves, 

&c.,  and  confiscation  (act  July  17,  1862,  ch.  195),  395,  494,  495 
COMMANDERS,  MILITARY.     See  "  Military  Commanders." 

COMPENSATION. 

to  slave  masters,  see  "  Slavery,"  and  Note  on,  .         .         •     405 

COLLAMER,  SENATOR, •     497,  504 

CONFEDERATE  STATES. 

claim  to  be  an  independent  de  facto  government,     . 

claim  as  against  the  United  States  full  belligerent  rights,  .       43,  236 

claim  that  the  United  States  is  to  them  a  foreign  nation,  and 
its  citizens  are  alien  enemies,  and  invaders  of  their  soil, 
see  note  on  "  Confiscation,"  ....  236,  409-427 

legislation  of,  in  relation  to  confiscation  of  the  property  of  their 

enemies  (note),  see  title  "  Confiscation,"  and  Note,      409-424 


INDEX. 


629 


CONFEDERATE   STATES  —  continued. 

who  are  enemies  of,  as  defined  by  Confederate  statutes,    see 

Note  on  "  Confiscation," 409,  424 

declaration  of  war  by,  against  the  United  States,  .  .  .352 
see  "  Laws  of  Confederate  States,"  see  note,  .  .  .  409-424 
alone  liable  for  injuries  to  subjects  of  governments  who  have 

conceded  belligerent  rights  to  them,        .         .         .     334,  345 
held  by  a  majority  of  the   Supreme  Court  to  have  been  a  de 
facto  government  in  the  sense  required  to  bring  a  cap 
ture  by  their  cruisers  of  insured  property  within  a  clause 
of  a  policy  of  insurance  warranting  against  capture  by 

"  the  enemy  "  (see  Appendix), 587 

political  existence  of,  as  a  de  facto  government,  has  never  been 
conceded  by  the  political  departments  of  our  govern 
ment,  •  299-306 

government   of,   and   all   acts  of,  declared   null   and  void,  by 

proclamation,  and  by  acts  of  Congress,  .         .     427 

see  title  "  Reconstruction." 
laws  of,  relating  to  confiscation,  and  remarks  on,       .         .     409-423 

relating  to  alien  enemies, 409 

relating  to  sequestration,  ..... 

relating  to  property  of  alien  enemies  liable  to  sequestra- 

tration, .417 

further  act  of,  on  the  same  subject, 418 

remarks  on  these  acts,      .......     424 

laws  of,  establishing  military  courts,  .         .         .      447,  449,  451 
joint  resolution  of,  on  retaliation,       .....     449 

act    of,  to   repress   importation  of  Confederate  money  by 

their  enemies,    ........     449 

war  powers  used  by,  ....      455,  459 

act   of  declaring    or   recognizing   war    with   the    United 

States, 455,  459 

effect  of, 459 

Congress  of,  determined  as  a  political  question  the  legal  status 

of  all  inhabitants  of  the  Confederate  States,   .  .     427 

although  the  Confederate  States  were  held,  in  Mauran  v. 
Insurance  Co.,  to  be  a  de  facto  government  within 
the  sense  of  terms  employed  in  a  policy  of  insurance, 
yet,  in  the  subsequent  cases  of  the  United  States  v. 
Keehler,  and  Hickman  v.  Jones,  the  Court  held  unani 
mously  that  the  rebel  States  were  not  a  de  facto  gov 
ernment  in  such  a  sense  as  to  give  any  legal  efficacy 
to  its  acts.  See  Appendix,  pages,  .  •  607,  608 


630  INDEX. 

CONFISCATION. 

of  personal  estate,  belligerent  right  of, 48 

authorized  and  allowed  by  the  Constitution,     .         .         .          54-62 
of  all  personal  property  of  all  persons  residing  in  belligerent 

districts,  whether  friendly  or  hostile,  is  allowable,  .         56-58 
of  enemy's  real  estate,       ........       58 

act  of  1862  is  not  a  bill  of  attainder,  nor  is  it  an  ex  post  facto 

law, 114 

act  of  1862,  legal  construction  of, 118 

not  within  the  prohibition  of  the  Constitution,        .         .     121 

see  note  on, 425 

practical  operation  of, 124 

right  of,  recognized  by  the  Supreme  Court,       ....     240 
act  July  17,  1862,  President's  Lincoln's  views  of,  .         .     406 

President's  message  upon  (note), 406 

his  error  in  constitutional  law,  ......     409 

his  course  on  this  subject,         .......     409 

bills  in  both  Houses  of  Congress  on, 409 

anticipated  results  of  our  failure  to  have  an  effective  confisca 
tion  act, 126,  127,  128 

actual  results,  .........     409 

acts  of  Confederate  Congress  relating  to,          ....     409 

Confederate  act  August  8,  1861, 409 

August  30,  1861, 411 

December  23,  1861, 417 

February  15,  1862, 418 

Confederates'  opinion  of  their  war  powers  under  their  constitu 
tion,  424 

the  policy  of  the  government  as  to  confiscated  lands,  &c.,  see 

correspondence  with  Hon.  G.  W.  Julian,        .         .         .     470 
property  of  malignant  enemy  refusing  amnesty  should  be  con 
fiscated, 473 

effect  of,  on  the  right  of  a  creditor  to  collect  his  claim  out  of  the 

proceeds  of  (S.  O.  532,  &c.), 382 

constitutionality  of,  not  now  doubted,  as  remarked  by  Chase, 

C.  J., 425 

policy  of  confiscation,  how  far  recommended,    ....     470 
uselessness  of  confiscation  and  forfeitures  as  provided  for  by 

laws  of  Congress, 126-130,471 

act  of  July  17,  1862,  its  history  and  the  mode  in  which  it  was 
administered,  as  regards  the  employment  of  colored  per 
sons,  478,  481,  493,  494 

its  true  construction, 112-116 

debates  in  Congress  upon  its  passage,        ....     494-509 


INDEX.  631 

CONFISCATION  —  confirmed 

how  it  was  interpreted  by  those  who  framed  it,  so  far  as  re 
gards  the  use  of  colored  persons  in  the  army,          .         .     507 
act  of  July  17,  1862,  interpreted  by  Supreme  Court  (in  1870) 

as  confiscating  only  a  life  estate  (Appendix),          .         .610 
see  note  on  page      .         .         .         .         .         .         .         .         .111 

CONGRESS. 

war  powers,  foundation  of,  references  to  the  Constitution,         .       27 
power  of,  to  do  what  is  essential  for  the  preservation  of  the  re 
public,  10 

powers  of,  hitherto  unused,       .         .         .         .         .         .         .11 

powers  of,  new  inquiries  as  to  their  limits,         .         .         .         .12 

powers  of,  leading  questions  relating  to  them  stated,          .      .   .       13 
power  of,  to  pass  laws  for  appropriating  private   property  for 

public  use  when  justified  by  public  necessity,  .         .       15 

reasons  for  giving  this  power  to,       .         .         .         .         .         .15 

must  provide  indemnity,  when,         .         .         .         .         .         .16 

may  construe  as  "  public  use  "  modes  of  dealing  with  property 
other  than  "  using   it,"  in  the  sense  in  which  this  term 
is  ordinarily  understood,         .         .         .         .         .         .17 

illustrations  of,  .........       18 

has  power  under  the  Constitution  to  appropriate  all  kinds  of 

property  to  public  use  in  case  of  public  necessity,  .       18 

this  power  of,  includes  "  property  "  in  slaves,    ....       18 

also  includes  real  estate,  personal   estate,  rights  in  action 
or  in  possession,  obligations  for  money  or  for  labor 
or  service,  .........       18 

used  by  Confederate  Congress,  see  act  February  17,  1864, 

and  note  on  page 26 

application  of  this  rule  by,   on  occasion  of  our  treaty  with 

France, 19 

application  of  the  rule  in  case  of  slaves  carried  away  by  the 

British,  compensation  being  paid  to  the  masters,    .         .       19 
application  of  the  rule  when  slavery  was  abolished  in  the  Dis 
trict  of  Columbia,  .         .         .         .         .         »         .19 

application  of  the  rule  where  minors,  apprentices,  and  slaves 
have  been  relieved  from  obligation  to   their  parents  or 
masters,         .........       19 

reason  why  this  power  of,  should  exist,     .         .         .         •         19,  20 
has  power  to  pass  laws  requiring  all  citizens  to  do  military  ser 
vice, 20 

the   power  of,  to  provide  laws  requiring  slaves,  apprentices, 

minors,  and  persons  not  citizens,  to  do  military  service,-       20 
acts  of,  for  calling  forth  our  military  forces,  history  of,  during 

the  war  (note), 478 


632  INDEX. 

CONGRESS  —  continued. 

duty  of,  to  provide  compensation  for  (note),      .         .         .         .21 

remarks  upon,          .         .         .         .         .         .         .         .          21, 22 

whether  obligated  to  provide  compensation  for  slave  masters, 

masters  of  apprentices,  or  parents  of  minors,  for  loss  of 

labor  and  service, 21 

not  required  to  do  so  by  the  Constitution,  in  case  of  civil  war, 

&c., 22 

not  required  to  indemnify  Mormons, 22 

not  required  to  provide  indemnity  or  compensation  to  claimants 

of  labor  or  service,  if  slaves,  apprentices,  &c.,  are  called 

into  the  military  service  of  the  United  States,         .         .       24 
reasons  for  this,         .         .         .         .         .         .         .         .         .       24 

civil  power  of,  to  appropriate  private  property,  is  not  superseded 

by  the  war  power  to  seize,     ......       24 

war  powers  of,  references  to  the  Constitution  containing,          .       25 
power  of,  to  abrogate  or  abolish  slavery  if  required  for  public 

welfare  and  common  defence  in  time  of  war,  .  .  26,  28 
is  the  sole  judge  as  to  the  time  when  this  condition  of  affairs 

exists, 28 

duty  of,  to  abolish  slavery  as  a  war  measure,  Preface,       .         .      viii 
power  of,  to  seize  and  impress  slaves  into  military  service  acted 

upon  by  Confederate  Congress,  note,  page  ...  26 
danger  of  misuse  of  powers  of,  conferred  by  the  18th  clause 

of  art.  1,  sec.  8,  of  the  Constitution,  ....  27 
abuse  of  powers  by,  remedy  for,  is  in  the  hands  of  the  people,  .  27 
powers  of,  not  in  conflict  with  those  of  the  President,  .  27,  30,  68 
may  determine  what  shall  be  done  with  captures ;  and  the 

President's  duty  is  to  execute  the  rules  of,     .         .         .       28 
power  to  abolish  slavery  nowhere  prohibited  in   the  Constitu 
tion,      28,  29 

States  are  prohibited  from  discharging  fugitives  from  labor  or 

service, 29 

explanation  of  the  clause  in   the  Constitution  as  to  fugitives 

from  labor  or  service,  &c., 28,  29 

powers  prohibited  to  States  may  by  implication  belong  to  the 

United  States, 29 

has   authority  to  make  all  laws  which  it  may  deem  necessary 

and  appropriate  to   carry  into  execution  the    powers 

granted  by  the  Constitution,          .         .         .  34 

opinion  of  Chief  Justice  Marshall  on, 34 

powers  of,  rules  of  interpretation  of,         ...       34,  35,  36,  37 

opinion  of  Alexander  Hamilton  on, 35 

opinion  of  Chief  Justice  Marshall,  approved  by  Webster, 

Kent,  and  Story,  on  this  point, 35 


INDEX. 


633 


CONGRESS  —  continued. 

has  power  to  confiscate  property,  or  liberate  slaves  of  rebels, 
if  these  acts  are,  in  the  judgment  of  Congress,  adapted 
to  suppress  rebellion,  ..•••••  "7 

resolution  of,  "  That  war  existed  by  the  act  of  Mexico,"    .         .       38 

has  sole  power  to  declare  war,  or  to  sanction  or  authorize  of 
fensive  war,  see  "  Prize  Cases,"  141-156,  .  38,  39,  151 

declaration  of  war  by,  not  necessary, 

duties  of,  separate  from  those  of  the  President,         ...       40 

certain  members  of,  misapprehension  of,  as  to  the  question 
whether  the  United  States  are  "  at  war," 

empowered,  in  the  express  terms  of  the  Constitution,  to  pass 

laws  to  punish  traitors. 46 

subjected  to  the  laws  of  nations  which  are  above  the  Constitu 
tion,  46 

A  Q 

has  power  to  pass  confiscation  acts,  . 

power  of,  to  declare  war,  is  found  in  the  Constitution,  Art.  1, 

sec.  8 •  •  .  '  49 

has  power  to  raise  and  support  armies,  to  provide  and  main 
tain  a  navy,  to  provide  for  calling  forth  the  militia,  to 
execute  the  laws  of  the  Union,  to  suppress  insurrection 
and  repel  invasion,  to  provide  for  organizing  the  army 
and  disciplining  the  militia,  and  for  governing  such 
part  of  them  as  may  be  in  the  service  of  the  United 

States, ;         •       49 

power  of,  in  time  of  war,  is  not  restrained  by  clauses  in  the 
Constitution  cited,  they  not  being  applicable  in  a  state 
of  war,          .......  48,49 

power  of,  how  affected,  in  time  of  war,  by  clauses  of  the  Con 
stitution,  which  declare  that  no  man  shall  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law ; 
that  private  property  shall  not  be  taken  for  public  use 
without  just  compensation ;  that  unreasonable  searches 
and  seizures  shall  not  be  made ;  that  freedom  of  speech 
and  of  the  press  shall  not  be  abridged ;  and  that  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be 

infringed, 

power  of,  as  affected  by  these  guarantees,  and  the  true  explana-^      ' 
tion  and  application  thereof,  °°'  ° 

'  limited  to  the  provisions  of  the  Constitution  in  legislating 
against  citizens  or  persons  holding  the  legal  status  of 
citizens  in  time  of  peace, 

not  so  limited  in  case  of  war,  _ 

power  of,  to  pass  confiscation  laws, 

80 


634 


INDEX. 


CONGRESS  —  continued. 

authorities  for, 54 

Chancellor  Kent's  opinion,        ......  55 

act  of,  necessary  to  effect  confiscation,  since  conquest  alone  does 

not  effect  it, 56 

law    of,    for    confiscation  of  enemy  property,  when  executed 

passes  perfect  title,         ......  56 

may  erect   military  government   over   territory  of   the   public 

enemy  by  law, 62-65 

necessity  of  this  power, 63 

may  establish  military  government  over  enemy  territory  as  a 
means  of  performing  the  duty  of  the  United  States  to 
guarantee  a  republican  form  of  government  to.  each 
State  in  the  Union,  see  chapter  on  "  Military  Govern 
ment,"  ^.  309-315 

duty  of,  to  take  such  steps,  military  and  'civil,  as  may  tend  to 
restore  a  republican  form  of  government  to  the  loyal 
citizens  in  the  insurrectionary  districts  ;  if  there  be  no 
persons  who  will  submit  to  the  Constitution  and  laws  of 
the  United  States  in  a  State,  it  is  a  duty  of  the  govern 
ment  to  hold  that  State  by  military  power  until  loyal 
citizens  shall  appear  there  in  sufficient  numbers  to  en 
title  them  to  receive  back  into  their  own  hands  the  local 
government  with  safety  to  the  Union,  .  .  65,  248,  249 
duty  of,  in  these  respects,  has  been  performed  by  Congress  in 
passing  the  Freedman's  Bureau  Act,  1865,  and  the  Re 
construction  Acts  in  1867,  see  note  to  page  ...  65 
duty  of,  as  performed  in  the  Reconstruction  Acts,  sustained  by 

Supreme  Court  in  cases  cited  (note),      ....       65 

see  Georgia  v.  Stanton, 588 

see  note  to  43d  edition,  on  "  Reconstruction,"          .         .         .     427 
may  provide  by  law  for  the  confiscation  of  the  property  of  all 
persons,  whether   friendly  or  hostile,   permanently  and 
voluntarily  residing  in  enemy  territory,  ...       56 

so  as  to  property  on  the  ocean  enjoyed  in  commerce.         .         .       55 
authorities  on  this  point  of  international  law,    ....       55 
rules  of,  and  laws  of  nations,  impose  the  only  limits  to  the  war- 
making  power  of  the  President  when  the  army  and  navy 

are  lawfully  in  actual  service, 57 

specific  authority  of,  to  make  rules  concerning  captures  on  land 
and  water,  given    by  the  Constitution,  Art.   1,    sec.  8,  ' 

cl.  11, 25 

see  note  to-  43d  edition,  on  "  Capture  of  Enemy's  Property."         451 
power  of,  under  the  Constitution,  to  declare  war,      ...       25 


INDEX. 


635 


CONGRESS  —  continued. 

to  raise  and  support  armies,        .         .  25 

to    make    laws   for    the    government   of  land   and   naval 

forces, 25,  207 

to  provide  for  calling  forth  the  militia  to  execute  the  laws  of 

the  Union,  to  suppress  insurrection  and  repel  invasion,     25 
to  provide  for  organizing  the  army  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may 
be  employed  in  the  service  of  the  United  States,         .       25 
has  power  to  provide  by  law  that  no  property  of  loyal  citizens 
residing  in  disloyal  States  should  be  captured  or  seized 
without  compensation,  . 
this  policy  commended,     . 

applied  in  Missouri, 58 

see  title  "  Capture,"  and  note  to  43d  edition,  . 
power  to  confiscate  enemy's  real  estate,    . 
this  power  of,  is  not  doubted  by  the  highest  authorities,  . 
decides  what  policy  shall  be  adopted  on  these  questions,  .  53,  58,  62 
not  relieved    of  concurrent  duty  to  emancipate  enemy's  slaves 
bv  reason  of  the  power  of  the  President  to  effect  the 

oq 

same  result,   ...•••••• 

peace  or  war  powers   of,  not  incompatible  with  those   of  the 

President,      .  •         •       68 

may  abolish  slavery  by  destroying  the  laws  which  sustain  it, 
while  the  commander  of  the  army  may  destroy  it  by  cap 
ture  of  slaves,  by  proclamations  and  other  means,  .         .       68 
prohibited  by  the  Constitution  from  passing  ex  post  facto  laws 

or  bills  of  attainder, 88 

CQ     Q*7 

explanation  of, 

see  Ex  parte  Garland  (Appendix),    . 

see  chapter  on  attainder,  84»  92 

right  of,  to  declare  the  punishment  of  treason,  and  its  constitu 
tional  limitations,  see  chapter  on  "  Treason,"  95, 11 

right  and  duty  of,  to  declare  the  punishment  of  crimes  other 
than  treason,  committed  during  the  rebellion,  see  Chap. 
VIL, 117-130 

laws  of,  against  rebels,  are  most  effective  which  require  no  aid 
of  rebels  to  enforce  them, .' 

powers  of,  not  obliterated  because  interested  parties  deny  their 
existence, 

power  of,  to  abolish  slavery,  grounds  of, 

power  of,  to  interfere  with  slavery,  has  been  denied,          .         .132 

foundation  of  this  error  as  to,  . 

1 S*? 
exposition  of  this  error,     . 


636  INDEX. 

CONGRESS  —  continued. 

has  power  to  interfere  with  slavery,  as  shown   by  reference  to 

several  clauses  in  the  Constitution,         ....     133 

as  by  regulation  of  the  slave  trade, 134 

by  calling  slaves  into  military  service,        ....     134 

by  cutting  off  supply  of  slaves  to  new  States,     .         .         .     134 
in  case  of  servile  insurrection,  ......      135 

by  treaty-making  power,  .......     135 

in  other  instances,  Chief  Justice  Taney's  opinion,       .         .     136 
to  abolish  slavery,  if  necessary  to   secure  domestic  tran 
quillity  and  suppress  domestic   violence    in    time  of 

civil  war,     ...  137 

in  case  of  inter-State  war, 137 

or  of  civil  war  in  a  State,  .......     137 

powers  of,  how  to  be  interpreted  properly  by  the  Constitution,     138 

how  authoritatively  construed, 138,  139 

has  power  to  provide  for  the  trial  and  punishment  of  military 
and  naval  offences,  &c. ;  this  power  is  entirely  indepen 
dent  of  the  judicial  power,     .         .181,  277,  335,  340,  342 
see  decision  of  Supreme  Court  of  the  United  States  in  Dynes  v. 

Hoover, 520 

act  of,  March  3,  1863,  ch.  81,  providing  that  no  person  arrested 
by  authority  of  the  President  shall  be  released  so  long 

as  the  war  lasts,  &c., 182 

necessity  of  military  arrests  recognized  by,  in  the  act  of  March 

3,  1863,  ch.  75, 182 

act  of,  for  enrolling  military  forces,  &c.,  is  constitutional,  .     205 

so  decided  in  several  cases,      .......     205 

power  of,  to  pass  all  laws  necessary  and  proper  to  carry  into 
execution  all  the  powers  granted  to  any  department  or 
officer  of  the  government,  ......  34 

recognition  of  courts  martial  by, 279 

right  of,  to  establish  military  territorial  or  provisional  govern 
ments  over  conquered  territory, 270 

has  power  to  create  tribunals  to  administer  its  laws,  rules,  and 
regulations  for  governing  the  army  and  navy  and  regu 
lating  captures, 276 

power  of,  to  create  courts  of  war, 277 

sanctioned  by  the  Supreme  Court, 277 

has  recognized  an-d  established  courts  martial,  .         .         .     279 

acts  of,  relating  thereto,  cited,  .....     280 

has  recognized  and  sanctioned  military  courts  of  inquiry,  280,  281 
has  recognized  and  sanctioned  military  commissions,  .  .  283 
must  decide,  as  one  of  the  political  departments  of  the  govern- 


INDEX. 


637 


CONGRESS  —  continued. 

ment,  whether  persons  inhabiting  insurrectionary  States 
shall  be  deemed  in  law  public  enemies,  .         .         .293 

power  of,  in  determining  questions   of  boundary,  this  being  a 

political  question, 294 

questions  as  to  the  sovereignty  of  any  foreign  country,     .     294 
questions  as  to  what  sovereignty  any  islands  or  countries 

belong,      ....•••••     294 
as  to  any  fact  assumed  by  the  government  with  regard  to 

the  sovereignty  of  any  island  or  country,    .         .         .     294 
as  to  the  recognition  of  State  governments  in  the  Union,       295 
to  decide  the  question  whether  a  government  organized  in 
a   State  is  the  duly  constituted  government  of  that 
State,  delegated  to  the  President  by  act  February  28, 

1795, •         •         -295 

that  his  decision,  under  that  act,  was  binding  upon  the  Ju 
diciary,  was  held  by  the  Supreme  Court,  see  author 
ities,  295 

power  of,  to  determine  as  political  questions  the  status  of 
foreign  nations  whose  provinces  or  dependencies  are  in 

revolution, 295 

to  decide  political  questions  as  to  foreign  invasion  of  the 

United  States 295 

to     determine,    as     a    political    question,  the    status    of 
those  who  are  engaged  in  insurrection  or  rebellion,  or 
civil  war,  in  the  United  States,      .....     295 
confirmatory    decisions    of    the    Supreme    Court    of   the 

United  States  thereupon  (note),  ....     295 

power  of,  in  determining  questions  of  belligerent  rights  (note),     295 
province  of,  as  one  of  the  political  departments,  to  determine, 
among  other  political  questions  in  our  civil  war,  the  fol 
lowing,  viz.  :  — 

1.  Whether  the  Confederates  shall  have  the  status  of  bel 

ligerents  ?......••      296 

2.  Whether  they  have  the  status  of  public  enemies  P          .     296 

3.  Whether  local  governments  to  be  formed  within  the  ter 

ritory  now  in  rebellion  shall  be  recognized  ?    .         .     296 

4.  Whether,  and  when,  a  state  of  peace  shall  be  declared 

or  recognized  ?....•••     296 

5.  Whether  the  Confederate  States  shall  be  recognized  by 

receiving  their  commissioners,  or  by  acknowledging 
their  independence  ?...•••     296 
decisions  of  the  political  departments  conclusive  on  these 

and  similar  questions,         .  ...     296 


638  INDEX. 

CONGRESS  —  continued. 

acts  of,  declared  rebels  public  enemies, 299 

character  and  extent  of  action  of,  requisite  to  record  the  decis 
ion  of  the  legislature,  that  Great  Britain  was  a  public 
enemy  of  the  United  States,  in  the  war  of  1812,  .  .  299 

laws  of,  for  the  purpose  of  recognizing  a  state  of  civil  war,  and 
for  treating  the  insurgents  as  public  enemies,  passed 
since  the  rebellion  commenced,  are  as  marked  and  as 
decisive  for  that  purpose  as  acts  for  a  similar  purpose 
passed  in  relation  to  the  subjects  of  Great  Britain,  .  299 

acts  of,  which  record  the  decision  of,  on  the  question  whether 

the  rebels  are  public  enemies, 300 

act  of,  July  13,  1861,  ch.  3,  comments  on,         ....     300 

May  20,  1862,  ch.  81, 301 

July  17,  1862,  ch.  195, 301 

March  12,  1863,  ch.  120, 301 

effect  of  these  statutes  of,  was  to  declare  the  insurgents  public 
enemies  of  the  United  States,  and  subject  to  the  laws  of 
war,  and  to  assert  full  belligerent  rights  against  them 
and  against  their  property  on  land  and  sea,  as  such,  303,  306 

question  of  policy  for  the  President  and  Congress  to  decide 
what  disabilities  resulting  from  the  status  of  public  ene 
mies  shall  be  removed, 305 

rights  conceded  to  the  inhabitants  of  rebellious  districts  to  be 
determined,  not  by  the  Constitution,  but  by  considera 
tions  of  policy  and  humanity, 306 

resolutions  of,  in  relation  to  claims  of  representatives  from 
seceded  States  to  seats  in  Congress,  rejecting  them 
(note), 306 

creation  and  regulation  of  military  government  by  legislation 

of»  309-315 

rules  or  restrictions  of  purely  military  government  by  laws  of, 

when  admissible, 309 

power  of,  to  establish  government  in  some  form  over  territory 

purchased  or  acquired,  how  implied,      .         .         .         .309 
to  establish  provisional  government  over  subjugated  dis 
tricts  in  time  of  civil  war,  ....      309,  310 

duty  of,  to  pass  laws  necessary  and  proper  to  aid  the  President 
in  carrying  into  effect  his  obligation  to  suppress  rebel 
lion  and  enforce  the  laws,  to  secure  domestic  tranquillity, 
and  to  guarantee  to  every  State  a  republican  form  of 
government,  .  .  .  .  .  .  .  .  .310 

power  of,  to  erect  military  governments  is  a  war  power,    .         .310 

duty  of,  to  aid  the  President  by  erecting  military  governments, 

how,  and  when,      .  310 


INDEX. 


639 


CONGRESS  —  continued. 

such  governments  should  be  continued  by,  until  the  rebellious 
districts  shall  again  be  permitted  to  resume  self-govern- 

ment, 31° 

may   establish   rules  and  regulations  of  military  government 
over  rebels,  which,  without  interfering  with  the  power  of 
the  President  as  commander  of  the  army,  it  will  be  his 
duty  to  administer,        ...•••• 
laws  rightfully  passed  by,  must  be  enforced  by  the  President,  . 
limits  of  the  power  of,      . 
mutual  interdependence  of  departments, 
may  declare  war,  but  cannot  carry  on  war, 
may  make  rules  concerning  captures,  and  for  the  government 
of  land   and  naval  forces   when  in  the  United  States 
service,  but  cannot  arrest  an  enemy  or  capture  a  prize,  .     311 

may  declare  or  recognize  peace, 311,  31 

effect  of  act  of,  March  2,  1867,  as  to  the  restoration  of  peace,  .     606 

may  terminate  military  or  provisional  governments, 

may  regulate,  modify,  or  cause  them  to  be  withdrawn, 

may  institute  civil  territorial  governments  in  their  place, 

may  pass  acts  for  restoring  inhabitants  of  insurgent  districts  as 

States  in  the  Union,       .         .         .         •     •    •         •         •     313 
assent  of,  presumed,  authorizing   the  continuance  of  military 
government  long  after  hostilities  ceased,  in  case  of  Cali 
fornia,     '  .    •         •         '     313 

nas  entire  control   over  military  governments  whenever  peace 

is  declared  or  recognized, 

having  passed  laws  for  regulating  the  conduct  of  the  President, 
when  peace  is  declared  if  he  does  not  obey  the  laws  he 
is  liable  to  impeachment, 
effect  of  laws  of,  in  territory  held  in  the  military  power  of  the 

belligerents, 
distinction  in  considering  the  effect  of  laws    of,  as    between 

OQrt 

aliens  and  citizens, 

laws  of,  rightfully  extend  over  all  the  United  States,  but  can  be 

enforced  only  as  our  armies  advance  in  rebel  districts,        323 

the  right  of,  to  make  rules  and  regulations  relating  to  con 
quest  and  captures,  conquest  itself  having  conferred  on 
the  conquerors  the  right  to  make  laws  for  the  conduct 
of  people  subject  to  their  power,     . 
COMMERCIAL  INTERCOURSE. 

with  the  public  enemy  prohibited  by  the  President's  proclama 
tion,  August  16,  1861,    . 

with  States  or  parts  of  States  declared  in  rebellion  by  the  Pres 
ident  forbidden  by  stat.  July  13,  1861,  sec.  5,  238,  243,  297,  300 


640 


INDEX. 


COMMERCIAL   INTERCOURSE  —  continued. 

penalties  of  forfeiture  for  holding,     .         .         .         .         .  300 

as  prohibited  by  this  act,  held  by  the  minority  of  the  Supreme 
Court  in  the  prize  cases  as  the  first  absolute  recognition 
of  a  state  of  civil  war  by  the  government  with  the 

rebels, 240 

CONKLING,   HON.   ROSCOE,   SENATOR   (N.   Y.). 

resolution  that  Congress  should  compensate  slaveholding  States 

for  emancipating  slaves,         ....  396 

CONQUEST. 

suppressing  rebellion  is  not  the  conquest  of  a  foreign  country,      321 
secured  only  by  some  form  of  military  government,  .         .261 

reasons  for  this, 263 

condition  of  affairs  in  the  Southern  States,        .         .         .         .     264 
of  foreign  territory  gives  conquered  party  no  civil  rights  under 
our  Constitution,  nor  does  acquisition  of  their  territory 

by  treaty,  266 

rights  acquired  by, 459 

rebels,  and  the  territory  occupied  by  them,  may  be  held  by  the 

United  States  by  right  of,  .  .  .  44,  45,  46,  54,  239, 
240,  242,  244,  245,  247,  248,  263,  266,  267,  273 
see  title  "  Reconstruction  Acts,"  "  Confiscation,"  "  Capture." 
in  case  of,  the  will  of  the  conqueror  governs,  .  .  .  .321 
effect  of,  on  local  laws,  governments,  institutions,  &c.,  .  .321 
see  "  Military  Government." 

gives  valid  title  to  the  victor  so  long  as  he  remains  in  firm  and 
exclusive  possession  of  the  conquered  territory  (Chief 

Justice  Taney), 327 

confers  on  the  conqueror  authority  to  make  laws  for  the  conduct 

of  the  subject  people, 309 

rights  over  rebels  gained  by, 473 

what  the  United  States  gain  by, 473 

CONSTITUTION  OF  THE  UNITED  STATES. 

purposes  for  which  it  was  established, 1 

powers  not  delegated  by  it  are  reserved  to  the  States  or  to  the 

people  (Preface  to  "  War  Powers  "),  v 

powers  under  it  are  all  limited  and  defined,  Preface,  page  v 

powers  we  should  expect  to  find  in  it, 10 

result  to  the  country  if  it  denies  the  powers  necessary  to  save 

the  Union,     .....  n 

not  so  framed  as  to  paralyze  the  power  of  self-defence,     .         .     292 

liberal  or  strict  constructionists, 8 

authoritative  construction  of,  138 

opinions  of  the  Supreme  Court  on,  .         .         .  138 


INDEX.  641 

CONSTITUTION   OF  THE  UNITED   STATES  —  continued. 

framers  of  the  Constitution  on, 139 

of  political  parties  on, 139,140 

contains  powers  to  make  laws  for  peace  and  laws  for  war,          .       11 
the  law  of  nations  is  above  it,  .         .         .         .  46 

contains   all  powers  necessary  to  public  welfare  and  common 

defence, 138 

but  the  nature,  character,  and  extent  of  the  power  to  "  pro 
vide  for  general  welfare  and  common  defence,"  being  in 
dispute,  is  not  relied  upon  in  this  work  as  alone  the 
basis  of  a  claim  for  any  specific  powers  of  government, 
Preface,  page  ........  v 

how  it  has  been  violated  by  the  rebels, 1 

some  leading  questions  under  it,  growing  out  of  the  rebellion, 

stated, 13 

references  to,  showing  the  war  powers  of  Congress,  ...       27 
guarantees  of  civil  rights  by,  in  time  of  peace,  not  applicable  in 

time  of  war, 49-50.51,52 

guarantees  of,  how  properly  applied,         ....          52,  53 

does  not  decide  whether  belligerent  rebels  shall  have  civil  rights 

under  our  government;  this  is  a  question  of  public  policy,       53 
allows  confiscation,   .         .         .         .         .         .         .         .         48,  62 

does  not  prohibit  confiscation  act  of  1862,         .         .         .         .121 

does  not  forbid  certain  military  arrests,    .         .         .         .         .173 

sanctions  them,         .         .         .         .         .         .         .         .         .171 

military  courts  are  not  prohibited  by, 288 

application  of  5th,  6th,  and  7th  Amendments,  .         .      288,  289 

recognition  of  this  view  by  the  Supreme  Court,          .         .         .     290 

13th  Amendment, 399 

letter  of  the  author  to  G.  W.  Julian, 469 

14th  Amendment, 399 

15th  Amendment, 400 

guarantees  no  rights  to  public  enemies,  but  declares  their  lia 
bilities,  293 

amendments  of,  cited,  whether  applicable  or  not  to  martial  pro 
ceedings,  is  not   material  in   determining  the  rights  of 
public  enemies,      ........     293 

see  titles  "  Slavery,"  "  Civil  Rights." 

not  violated  by  reconstruction  acts,  see-"  Reconstruction." 

not  violated  by  act  March  3,  1863,  for  enrolling  and  calling  out 

the  military  forces, 205 

nor  by  confiscation  act  July  17,  1862, 123 

effect  of  anticipated  amendment  of,  abolishing  slavery,  on  public 

lands  in  the  South,         .......     474 

81 


042  INDEX. 

COOLIDGE  o.  GUTHRIE. 

opinion  of  Mr.  Justice  Swayne,         ......  591 

CORNWALLIS,  LORD, 69 

COURTS,  JUDICIAL. 

the  judicial  power  under  the  Constitution  is  in   no  manner  or 

degree  used  by  military  courts,      .....  278 

decisions  of  the  Supreme  Court  on  this  subject,         .         .         .  278 
inappropriate  and  ineffectual  in  war,          .         .         .         .         .278 

have  no  jurisdiction    over   appeals   from   sentences  of  lawful 

courts  martial,        ........  278 

jurisdiction  of,  when  to  be  resumed  over  seceded  States,  .         .  324 

see  remarks  of  Chase,  Chief  Justice, 596 

members  of,  who  engage  in  rebellion,  lose  their  rights  as  judges,  325 

useless  in  hostile  districts  before  peace  is  reestablished,    .         .  325 

Chief  Justice  Chase's  letter  to  President  Johnson  as  to,    .         .  595 
have  no  jurisdiction  over  acts  of  military  courts   in  the  rebel 
lion,  see  act  March  2,  1867,  ch.  155. 

nave  now  no  jurisdiction  over  decisions  of  military  courts  dur 
ing  the  war,    ........     287,  288 

see  "  Military  Courts." 

cases  decided  by,  relating  to  the  subjects  discussed  in  this  work, 

viz.  :  — 
the  Prize  Cases,         ....  .      141-150 

Fleming  v.  Page  (9  How.  614),  512 
Cross  v.  Harrison  (16  How.  189),       .         .                   .         .516 

Jeckerv.  Montgomery  (18  How.  112)        ....  519 

Dynes  v.  Hoover  (20  How.  79),         ...                  .  520 

Leitensdorfer  v.  Webb  (20  How.  177),      ....  522 

Ex  parte  Vallandigham,     .......  524 

Cherokee  Nation  v.  State  of  Georgia  (6  Wallace,  73),        .  529 
State  of  Rhode  Island  r.  State  of  Massachusetts  (12   Pe 
ters,  657), 530 

United  States  v.  Moreno  (1  Wallace,  400),         .         .         .  531 
The  Circassian  (2  Wallace,  150),         ...                   .531 

The  Venice  (2  Wallace,  274),                                                   -  532 

Mrs.  Alexander's  Cotton  (2  Wallace,  417),                   .         .  532 

Ex  parte  Milligan  (4  Wallace,  106),  .         .  536 

Cummings  v.  State  of  Missouri  (4  Wallace,  316),       .         .  556 

Ex  parte  Garland  (4  Wallace,  374), 565 

Mississippi  v.  Johnson  (4  Wallace,  497),    ....  579 

The  Peterhoff  (5  Wallace,  60), 582 

Gray  Jacket  (5  Wallace,  369), 582 

The  William  Bagaley  (5  Wallace,  402),     .                           .  583 

Mauran  v.  Insurance  Co.  (6  Wallace,  14),           .         .         •  587 


INDEX.  643 

COURTS,   JUDICIAL  —  continued. 

State  of  Georgia  v.  Stanton  (6  Wallace,  63).  .  .  .  588 
Coolidge  v.  Guthrie,  opinion  of  Mr.  Justice  Swayne,  .  591 

Chase,  Chief  Justice,  letter  to  President  Johnson,      .         .     595 

The  Grapeshot  (7  Wallace,  563), 598 

The  State  of  Texas  v.  White  (7  Wallace,  702),          .         .     598 

The  Grapeshot  (9  Wallace,  131), 601 

United  States  v.  Anderson  (9  Wallace,  64),  .  .  .  603 
United  States  v.  Keehler  (9  Wallace,  86),  .  .  .  607 
Hickman  v.  Jones  (9  Wallace,  198),  ....  608 

Bigelow  v.  Forrest  (9  Wallace,  339),         .         .         .         .610 
see  also  Kees  v.  Todd  (C.  C.  P.  Ohio),       .         .         .         .216 
COURTS  MARTIAL. 

established  by  statute, 275 

statutes  referred  to,  ........     278 

State  courts  martial  authorized,         ......     278 

organization  of,  regulated  by  statute,         .         .         .         .         .279 

jurisdiction  of,  once  acquired,  is  exclusive,          ....     280 

have  no  jurisdiction  of  navy  agents, 380 

acts  of,  during  the  rebellion,  confirmed  ;  civil  courts  have  no  sub 
sequent  jurisdiction  thereof,  see  act  March  2,  1867,  ch.  155. 

see  note  on  "  Military  Government," 427 

established  by  the  Confederate  Congress,  see  acts  cited,    .      447-451 

see  note  on  "  Reconstruction," 427 

see  "  Military  Courts." 
COURTS  OF  INQUIRY. 

established  by  statute,       ........     275 

how  established  or  authorized, 280 

power  to  compel  attendance  of  witnesses,           .         .         .         .281 
COURT,    PROVISIONAL.     See  "  Provisional  Court." 
COWAN,    SENATOR, 502,  503,  504, 505 

CREDITORS. 

of  registered  rebels  not  entitled  by  law  to   collect  their  debts 
out  of  property  liable  to  forfeiture  to  the  United  States, 

358,  386 

of  public  enemy,  payment  of  claims  of  creditors  of,  .         .         .     382 
opinion  of  Giles,  J.,  ........     381 

CRIMES  AGAINST  THE  UNITED  STATES. 

treason  and  its  punishment,      ......        93,  114 

new  crimes  of  rebellion  require  new  laws,         .         .         •         .117 
among  these  are  included   accepting  or  holding  office  under 

the  Confederates,  .         .         .         .         •         •         •         .117 

violating  oath  of  allegiance  to  the  United  States,  .  .117 
taking  oath  of  allegiance  to  Confederate  government,  .  117 


644  INDEX. 

CRIMES   AGAINST   THE  UNITED    STATES  —  continued. 

making  and  passing  new  illegal  currency,  .         .         .117 

acknowledging  and  obeying  authority  of  seceded  States,  .         .117 
neglecting  or  refusing  to  return  to  allegiance,  and  lay  down 

arms  after  warning,         .         .         .         .         .         .         .     ll? 

attempting  to  negotiate  a  treaty  with  foreign  powers  to  intervene 

in  our  affairs,          .         .         .         .         .         .         .         .117 

granting  or  taking  letters  of  marque,        .         .         .         .         .117 

conspiracy  against  lawful  government, 117 

holding  public  meetings  to  incite  the  people  to  the  commission 

of  treason,     .         .         .         .         .         ..         .         .         .117 

plotting  treason,       .         .         .         .         .         .         .         .         .117 

organizing  or  forming  new  governments,  &c.,  .         .         .         .117 

framing  and  passing  ordinances  of  secession,    .         .         .         .117 

making  of  treaties  between  either  of  the  States,         .         .         .117 
refusal  to  take  oath  of  allegiance  when  tendered  by  proper  au 
thorities,        .         .         .         .- 117 

resistance  to  civil  process  or  to  civil  officers  when   such  resist 
ance  is  not  so  general  as  to  constitute  war,    .         .         .117 
all  attempts  to  overthrow  government  should  be  punished  as 

crimes, 116 

punishment  of,  compared, 120 

military  crimes,  or  crimes  of  war,  defined,          .         .         .         .188 

double  liability  for, 188 

acts  made  such  by  a  state  of  war,       ......     189 

may  be  committed  by  persons  not  amenable  to  civil  pro 
cess  or  indictment, '211 

prevention  of,  is  the  best  use  to  be  made  of  armies,  .         .     193 
prevention  of,  is  the  object  of  most  military  operations,     .      193 
prevention  of,  is  the  justification  of  captures  of  property 
and  military  arrests,  the  object  for  which  the  Presi 
dent  was  authorized,  in  1798,  to  imprison  aliens,         .     195 
prevention  of,  authorizes  the  call,  by  the  President,  of  the 

army  and  navy  into  service, 195 

CROSS   v.   HARRISON  (16  How.  189) 516 

CUMMINGS   v.  'STATE   OF   MISSOURI  (4  Wallace,  316),  .         .     556 


D. 

DAVIS,  SENATOR, 505 

DAVIS,   MR.   JUSTICE, 536,  603 

DECISIONS   OF  THE   SUPREME   COURT. 

in  relation  to  matters  herein  treated  of,  printed  in  this  work, 

see  "  Courts,  Judicial,"  Appendix,  pp.     .         .         .     512-610 


INDEX. 


645 


DEBATES   IN  CONGRESS. 

on  the  confiscation  and  militia  acts  of  July  17,  1862,  ch.  195, 

andch.  201, 494-511 

what  these  debates  prove  as  to  the  meaning  of  these  acts,      494,  507 
DICKEY,  JUDGE  (Ohio),  opinion,  .        .     216 

DESERTER. 

liability  of  officer  who  shot  a  deserter, 375 

DISABILITIES. 

see  "  Public  Enemy." 

form  of  oath  of  office  to   be  taken  by  those  from  whom  legal, 

have  been  removed,  see  act  July  11,  1868,  ch.  139. 
legal  and  political,  acts  for  relieving  from,  see  "  Public  Enemy," 

"  Reconstruction." 
see  Ex  parte  Garland,      ........     565 

DOMICILE. 

necessary  to  be  determined  in  all  cases  where  claims  against 

government  are  presented, 341 

rule  for  determining  domicile,  .  .  .  •  •  .341 
distinction  between  personal  and  commercial,  ....  342 
determines  national  character  of  person,  .....  346 
does  not  determine  character  of  property,  ....  346 
in  neutral  country  does  not  protect  trade  in  an  enemy's  coun 
try,  •  346 

constructive  or  mercantile,         .......  342 

DOOLITTLE,  SENATOR, 499 

DOUGLAS,  SENATOR, 140 

DUNMORE,   LORD, 69 

DYNES   v.  HOOVER  (20  How.  79), 520 


E. 

ELECTORAL   COLLEGE. 

States  in  rebellion  excluded  from  representation  in,   .         .         .     306 
see  joint  resolution,  February  8,  1865,      .....     306 
also  joint  resolution  No.  58,  July  20,  1868. 
see  "  Reconstruction." 

ELIOT,   HON.    T.   D.   (of  Massachusetts). 

joint  resolution  introduced  by,          ......  394 

bill  to  confiscate  rebel  property,         ....••  395 

bill  to  free  slaves  of  rebels  in  hostility  against  the  government,  395 

bill  to  establish  the  Freedman's  Bureau, 398 

letter  of,  and  reply, 464 


646  INDEX. 

EMANCIPATION  BUREAU. 

see  "  Freedman's  Bureau." 

letter  of  Hon.  T.  D.  Eliot  upon, 464 

reply  relating  to, 464-466 

anticipated,      .         .         .         .         .         .         .         .         .         .477 

ENEMIES. 

public,  rights  of,  in  territorial  civil  war,     .         .         .         .         .237 

rights  of,  to  be  determined  by  laws  of  war,         .         .         .     242 
all  voluntarily  and    permanently  residing   in    belligerent 

districts  are, 237 

claims  of  rebels  as  public  enemies,     .....     237 

what  they  do  not  claim,     .         .         .         .         .         .         .237 

when  citizens  of  the  United  States  are  declared  such,    343,  352 

capture  of  coin  on  the  person  of, 381 

distinction  between  alien  enemy  and  public  enemy,  .  .  .331 
who  are  enemies,  when  two  nations  are  at  war,  .  197-200,  335 

who  are  subject  to  the  law  of  reprisals, 335 

all  members  of  one  nation  are  enemies  of  all  members  of  the 

other  nation  in  a  public  war,  .....     335 

strangers  coming  iuto  a  belligerent  country  before  or  after  the 

war  began, 335 

foreigners  engaged  in  commerce,       ......     335 

aliens  participating  in  hostilities  against  the  United  States,       .     337 
citizens  of  the  United   States  and  aliens  in  rebel  States,  who 

remained  subjects  de  facto  of  rebel  government,     .         .     351 
all  de  facto  subjects  of  the  enemy  sovereign,    ....     342 

all  permanent  residents  in  the  enemy's  country,  .  .  .  342 
all  neutral  aliens  domiciled  in  rebel  States  before  the  war,  who 

did  not  withdraw, 343 

proclamations  and  laws  relating  to  alien  enemies,  .  .  .  343 
these  proclamations  and  laws  sanctioned  by  the  laws  of  war,  .  344 
act  of  Confederate  Congress  declaring  certain  residents  alien 

enemies, 351 

see  "  Confederate  Laws." 

opinion  of  the  Supreme  Court  on  a  question  of  enemy  property,     351 
when  citizens  become  alien  enemies,  and  in  what  respects      343,  352 
see  title  "  Public  Enemies." 
ENROLMENT  ACT    (March  3,  1863). 

its  constitutionality  affirmed,  and  reasons  given,  .  .  .205 
slaves  of  loyal  masters  in  loyal  States  not  enrolled  prior  to 

1864,  under  this  act, 371 

reasons  for  this, 371 

as  relates  to  colored  volunteers,  .....  508,  509 
as  amended  by  the  act  of  1864  (February  24),  .  .  .  509 
effect  of, 510,  511 


INDEX.  647 

a» 

ENEMY'S   PROPERTY. 

includes    all   property  of  the   inhabitants    of    the    rebellious 

States  during  the  war, 352 

all  property  belonging  to  a  house  of  trade  established  in  the 

enemy's  country,    ........     347 

even  if  some  of  the  owners  are  loyal  citizens  of  the  United 

States  resident  in  loyal  States,        .....     348 

all  property  of  consuls  engaged  in  commerce  with  the  enemy,  .     348 

its  character  is  stamped  upon  it  if  the  place  where  trade  is  car 
ried  on  is  hostile,  .......     349 

EXCHANGE   OF   PRISONERS   OF  WAR. 

by  the  United  States,  effect  of, 45 

of  rebels  convicted  of  piracy, 291 

F. 

FIELD,  MR.  JUSTICE, 556,  565 

FLEMING  v.  PAGE  (9  How.  614), 512 

FORFEITURE. 

caution  against  relying  upon  the  technical  doctrine  of,  in  rela 
tion  to  questions  of  State  rights, 234 

see  "  Confiscation,"  "  Capture,"  "  Slaves."  "  Public  Enemy," 
"  Military  Government,"  &c. 

uselessness  of  proceedings  for,          .         .         .         .         .         .471 

FLORIDA,  STATE   OF. 

admitted  to  representation,  &c., 445 

FORREST   ats.   BIGELOW, 610 

FOSTER,  HON.  L.  S.,   SENATOR  (Conn.). 

bill  to  enable  the  President  to  provide  for  captives  taken   from 

slave  traders,         ........     397 

FRANCHISE. 

liability  of  aliens  to  military  service,  who  have  exercised  the 

elective  or  other  franchise  of  citizenship,  .  .  .  339 

elective,  may  be  given  to,  or  withheld  from,  the  insurgents, 
inasmuch  as  the  United  States  hold  the  territory  occu 
pied  by  the  inhabitants  of  the  insurgent  States  as  a  con 
quest,  subject  to  the  will  of  the  conqueror,  .  .  •  309 

see  "  Conquest,"  .  44,  46,  52,  239,  240,  242,  244,  245,  247, 

248,  263,  266,  267,  273,  321 

elective,  within  control  of  the  conquering  power,  as  all  local 
laws  and  institutions  of  the  conquered  district  are 
overthrown  by  civil  war,  .  .  •  •  •  .321 

see  "  Military  Government." 


648  INDEX. 

FRANCHISE  —  continued. 

elective,  within  control  of  conquering  power,  by  reason  of  the 
obligation   of  the   United  States   to  guarantee  to  each 
State  a  republican  form  of  government,        ...       65 
see  "  Guarantees." 

elective,  when  used  by  aliens,  effect  of,  on  their  claims  to  in 
demnity,  see  "  Indemnity,"  "  War  Claims."    .         .     331-357 
FREEDMAN'S    BUREAU. 

see  note  on  "  Slavery,"     ........     393 

act  establishing,  approved  March  3,  1865,         :         .         .         .     428 
introduced  into  the  House  of  Representatives   by  Hon.  T.  1). 

Eliot, 398 

a  part  of  the  system  of  reconstruction, 398 

correspondence  on  this  act  with  Mr.  Eliot,        ....     464 

see  "  Reconstruction  "  (note  to  43d  edition),    ....     427 

see  Index,  "  Military  Government." 

continued  for  one  year,  &c.,  by  act  July  6,  1868,  ch.  135,  .     430 

see'  act  July  25,  1868,  ch.  245,  which  provides  for  its  discon 
tinuance  January  1,   1869,  excepting,  &c.,  see  United 
States  Statutes,  1868,  p.  193. 
act  creating  it,  referred  to,         .......     478 

FORREST   ats.   BIGELOW,  9  Wallace,  339, 610 

GK 

GARLAND,   Ex  parte,  case  of  (4  Wallace,  374),      .         .         .         .565 
GEORGIA. 

the  State  of,  v.  Stanton  (6  Wallace,  63),  ....     445,  588 

admitted  to  representation,  &c., 44f> 

GHENT,  TREATY  OF, 70 

GOVERNMENT  OF   THE  UNITED   STATES. 

the  political  department  of,  must   decide  all   political   ques 
tions,  48,  53,  58,  62 

the  political  department  of,  must  decide  all  political  questions,        51 

see  "  Policy  of  the  Government." 

made  by  the  people,  for  the  people,  must  have  powers  necessary 

to  its  own  preservation, 140 

war  powers  of,  see  "  War  Powers." 

public  enemies,  who  seek  to  overthrow  it,  renounce  all  claim  to 

its  protection,        .........     472 

\var  powers  used  by,  in  the  rebellion, 390 

GRAPESHOT,   THE. 

(7  Wallace,  563), 598 

(9  Wallace,  131), 601 


INDEX.  649 

GILES,   MR.   JUSTICE  (of  Baltimore),  opinion,     .  .     381 

GRAY   JACKET  (5  Wallace,  369),  .        .     582 

GREYTOWN. 

injuries  suffered  in  bombardment  of, 336 

Lord  Palmerston's  opinion, 336 

Attorney  General's  opinion, 336 

GRIER,  MR.  JUSTICE, 141,  598 

GRIMES,  HON.  J.  W.,  SENATOR  (Iowa). 

bill  providing  that  school  taxes  levied  on  colored  persons  in  the 
District   of  Columbia,  should  be   applied  to  maintain 

schools  for  colored  children, 396 

amendment  proposed  to  the  bill  for  pay  of  colored  troops,  .  496 
as  to  the  employment  of  colored  troops,  ....  500,  504 

GUARANTEES. 

of  civil  rights  in  time  of  peace  by  the  Constitut  ion,  not  always 

applicable  in  time  of  war, 49 

under  the  Constitution,  the  true  application  of,  ...  50 
of  the  United  States  that  each  State  in  the  Union  shall  have  a 

republican  form  of  government,      ...        57,  269,  310 
GUTHRIE  ats.  COOLIDGE,  ...  591 

H. 

HABEAS   CORPUS. 

question  as  to  power  of  suspending  privilege  of,  stated,  .  .  83 
suspension  of  privilege  of  writ  of,  is  one  of  the  essential  means 

of  suppressing  rebellion, 202 

who  has  the  right  to  suspend  it, 203 

if  writ  of,  be  served  on  military  commanders,  their  duty,  .  202,  213 
instructions  of  War  Department  on  this  matter,  .  .  .  213 
President  may  suspend,  &c.  (act  March  3,  1863,  ch.  81),  .  202 

as  to  discharge  of  political  prisoners  by,  see  act  March  3,  1863, 

ch.  81. 

of  prisoners  under  indictment,  see  act  March  3,  1863,  ch.  81. 
see  act  relating  to,  February  5,  1867,  ch.  28. 
penalty  for  refusing  to  obey  writ  of,  see  act  February  5,  1867, 

ch.  28. 
appeals  from  final  judgments  on,  allowed,  see  act  February  5, 

1867,  ch.  28. 

appeal  not  allowed  by  act  February  5,  1867,  in  case  of  persons 
held   by  military  authorities  charged  with   military  of 
fences,  see  sec.  1. 
as  to   suspension  of,  by  Confederate    Congress,  see  act  1864, 

ch.  38,  note, 202 

82 


650  INDEX. 

HALE,  HON.  JOHN   P.,  SENATOR  (N.  H.),      .        .        .    496,  501 

HAMILTON,  ALEXANDER, 35 

HARLAN,  HON.  JAMES,  SENATOR, 506 

HARRISON  ats.   CROSS  (16  How.  189), 516 

HENDERSON,  SENATOR  (Indiana),      ....      398,  495,  500 

HICKMAN   v.   JONES  (9  Wallace,  198), 608 

HIGGINSON,   T.   W.,  COLONEL, 492 

HOOVER  ats.   DYNES  (20  How.  79),             520 

HOWARD,  HON.  j.  M.,  SENATOR, 506 

HOWE,  HON.  T.  O.,  SENATOR, 502 

I. 

IMPEACHMENT. 

President  liable  to,  if  refusing  to  obey  laws  of  Congress  regu 
lating  his  own  conduct  under  the  conditions  stated,  and 
regulating  the  military  governments  established  by 

him, 314 

power  of,  gives  control  over  the  President  in  relation  to  his 

conduct  in  war, 82 

limitation  of  that  power,  .         .         .         .  .         .83 

INDEMNITY. 

for  property  appropriated  to  public  use,  required  by  the  Con 
stitution,  18 

claims  of  slaveholders  to, 23 

claim  for,  of  Mormons,       ...                  ....  24 

effect  of  naturalization  and  militia  laws  on  claims  of  slave  mas 
ters  for,          .........  24 

question  on  this  subject  in  a  supposed  case,      ....  136 

when  paid  to  citizens  of  the  United  States  for  property  appro 
priated  by  the  government, 346 

when  not  allowed, 349 

claims  for,  depend  on  political  status  of  claimant,     .         .         .  336 

difference  between  loyal  citizens'  and  rebels'  claims  for,    .         .  336 

not  allowed  to  aliens  in  hostility  against  the  United  States,    337,  338 

not  allowed  to  aliens  who  have  used  the  elective  franchise,        .  339 
when  allowed  to  neutral  aliens,  domiciled  in  loyal  States,  for 

property  appropriated, 340 

when  for  property  destroyed,    .......  340 

right  of  non-domiciled  aliens  or  travellers,  how  lost,          .         .  346 
of  aliens  arrested  or  imprisoned  on  suspicion  of  hostile  inten 
tions,     354,  355 

allowed  in  several  cases,  .                  .         .         .       339, 340,  345,  346 


INDEX.  651 

INDEMNITY  —  continued. 

for  slaves  enlisted  in  the  military  service  of  the  United  States, 

policy  of  the  government  in  relation  to,          .         .         .     405 
statutes  relating  to,  ........     405 

President  Lincoln's  policy  on,  .......     405 

claim  of,  by  a  French  subject  against  liability  for  payment  of 
rent  to  United  States,  by  reason  of  his  owing  it  to  a 
rebel,     ..........     368 

to  loyal  slave  owners  in  loyal  States  for  slaves  taken  by  United 

States,  see  "  Policy  of  Congress,"          .         .          .         .371 

INSURANCE   CO.   ats.   MAURAN  (6  Wallace,  14),        .         .         .     587 

INSURGENTS, 390,  391 

INTERNATIONAL   LAW,  see  "  Law  of  Nations." 
see  Title  "  Rebels,"  "  Public  Enemy." 

INTRODUCTION. 

to  the  "  War  Powers,"      ........         1 

to  "  Military  Arrests," 159,160 

to  "  Reconstruction,"  note,       .......     229 

to  "  Military  Government,"       .......     259 

to  "  War  Claims," 329,330 

to  the  43d  edition, ix,  x,  xi 


J. 

JACKSON,   GENERAL, 75 

JECKER  v.   MONTGOMERY  (18  How.  112),         ....  519 

JEFFERSON,   THOMAS, 69 

JESSUP,   GENERAL, 75 

JOHNSON,   ANDREW,   PRESIDENT. 

sketch  of  his  policy  in  relation  to  the  rebels  and  to  the  military 

government  of  the  rebel  States,     ....      442-445 

ate.  State  of  Mississippi  (4  Wallace,  497) 579 

JONES   ats.   HICKMAN  (9  Wallace,  198), 608 

JUDICIAL   POWER. 

in  no  part  or  degree  exercised  by  military  tribunals,         .         .  278 

decision  of  the  Supreme  Court  on,    ....••  278 

case  of  Dynes  v.  Hoover,           .....••  520 

Vallandigham, 524 

JULIAN,    HON.    G.    W.    (Indiana),  note  on  confiscation,  409 

correspondence  with,         .......     469,  470 

authorized  by  President   Lincoln  to   announce    his   change  of 

-    opinion  on  a  constitutional  question,       ....  409 


652 


INDEX. 


JURISDICTION. 

of  military  governments, 316-318 

of  military  courts, 316-318 

of  judicial  courts,      ........      316-318 

when  to  be  reestablished  over  seceded  States,  ....     324 

of  civil  courts  of  every  nation  over  aliens   committing  crimes 

within  its  territory,         ......  334 

of  courts  of  war,  and  military  government  over  aliens,      .         .     353 
of  civil  courts  over  acts  of  military  tribunals  restrained  by  act 

March  2,  1867,  ch.  155. 
Chase,  C.  J.,  remarks  at  Raleigh,  1867,  on  (Appendix),     .         .     596 

Ex  parte  Milligan, 536 

remarks  on,      .......  450 


K. 

KEEHLER  ats.   UNITED    STATES    (9  Wallace,  86),  .         .     607 

KEES  v.   TODD,   C.   C.   P.  (Ohio), 216 

KENT,   CHANCELLOR, 35,55,61 

KING,   SENATOR  (N.  Y.). 

amendment  introducing  colored  soldiers  into  the  military  ser 
vice  of  the  United  States, 397 

see  note  to  43d  edition, 496,  498,  499,  504 


L. 

LANDS   IN   THE  REBEL   STATES. 

several  modes  of  acquiring  title  to,  by  the  United  States,         .     470 

letter  to  Hon.  G.  W.  Julian,  note, 470 

uselessness  of  proceedings  for  forfeiture  of,  note,  .  126-130,  471 
proceedings  in  rem,  .....  471 

constitutional  objections  answered,  .         .         .         .         .         .471 

claims  of  rebels  to  protection, 471,  472 

small  number  of  rebel  land  owners, 472 

what  statesmanship  and  humanity  require,        ....     472 

conquest,  rights  of, 473 

of  malignant  enemy  refusing  amnesty  should  be  confiscated,  .  473 
great  value  of  lands  so  acquired  to  the  United  States,  .  .  473 
importance  of  this  subject  in  view  of  the  possibility  of  hereafter 

so  amending  the  Constitution  as  to  abolish  slavery,        .     474 

large  rebel  estates  should  be  divided, 474 

land  speculators, 475 

experience  in  Tennessee  with  negroes, 475 


INDEX.  653 

LANDS   IN  THE  REBEL   STATES  —  continued. 

restoration  of  the  Union  a  victory  of  peace,  ....  475 
effects  of  educating  the  masses  in  the  South,  ....  476 

soldiers  the  missionaries  of  liberty, 476 

small  farms  are  pledges  of  the  perpetuity  of  the  Union,  .  .  476 
homesteads  in  the  South,  what  may  be  done  with  them,  .  .  476 
the  issue,  freedom  from  slaves  and  just  and  equal  taxes,  or 

neither, 477 

principle  of  political  economy  involved  in,  .  .  .  .477 
seizure  of  lands,  Bureau  of  Industry,  .....  477 

land  office  system, 477,  478 

abandoned  lands  set  apart  for  freedmen,  see  Freedman's  Bu 
reau,  act  March  3,  1865, 428 

claims  to,  occupied  by  freedmen,  to  be  investigated  by  assistant 
commissioners  of  Freedman's  Bureau  (see  act  July  16, 

1866,  ch.  200), 430 

may  be   seized    by  commissioner   of  freedmen   (act   July  16, 

1866), 430 

occupied  by  freedmen  to  be  restored  (act  July  16,  1866),          .     430 
sales  of  certain  of  such  lands  to  heads  of  African  families  con 
firmed,  &c.  (act  July  16,  1866), 430 

authorized  (act  July  16,  1866), 430 

bid  in  at  tax  sales,  to  be  sold  in  parcels  of  twenty  acres, 

at  1.50  per  acre,  &c.  (act  July  16,  1866),     .         .     431,  432 
policy  recommended  to  the  government  relating  to,  in  Feb 
ruary,  1864, 470 

LANE,   HON.   JAMES   H.,  SENATOR,          ....    486,  501 
speeches  in  the   Senate   advocating  the  act  of  July  17,  1862, 
ch.  201,  for  the  introduction  of  colored  volunteers  into 

the  service, 501,  506 

authority  from  the  War  Department  to  empower  him  to  re 
cruit  colored  volunteers,         ......     489 

payment  of  his  regiment  under  the  act  above  named,  ten  dol 
lars  per  month,      ........     490 

speech  of,         ........         ...     506 

LAURENT. 

and  others,  residing  in  Mexico,  claimants  against  the  United 
States  for  damages  done  by  General  Scott  in  the  Mexi 
can  war,  note  to  page     .......     337 

LAW. 

administered  by  military  governments, 319 

what  remains  in  force  in  a  conquered  or  ceded  country,  .  .  319 
cases  cited  on  this  point,  note,  .  .  •  '  •  .319 
what  authority  these  laws  rest  upon,  .  ...  319 


654  INDEX. 

LAW  —  continued. 

will  of  conqueror  controls, 319,  320 

may  be  changed  by  will  of  conqueror.       .....     320 

local,  have  no  force  in  conquered  country  but  by  conqueror's 

consent, 320 

what  force  proprio  vigor  e,  .         .  ...     321 

distinction  between  alien  and  public  enemy,      ....     322 

of  war  swept  away  all  hostile  authorities,  laws,  &c.,  of  rebels,    .     323 
right  of  commander-in-chief  as  to,    .         .         .         .         .         .     324 

of  war  is  alone  applicable  to  public  enemies,     ....     324 

of  war,  certain  rules  of,     .......      334-336 

martial,  see  Title  "  Martial  Law." 
military,  see  Title  "  Military  Law." 
of  nations,  see  Title  "  Law  of  Nations." 

municipal  and  local,  how  affected  by  a  state  of  war,  see  Titles 
"  Conquest,"  "  Rights  of  Conquest,"  "  War,"  and  "  Mil 
itary  Government." 
.LAW  OF   NATIONS. 

is  above  the  Constitution, 46 

determines  international  belligerent  rights,        ....       47 

authorizes  liberation  of  enemy's  slaves, 69 

right  of  liberation   of  enemy's   slaves  confirmed    by  authority 

and  usage,     .........       74 

certain  rules  of  law  of  war,       ......      334-336 

modified  by  treaties, 340,  352 

is  the  only  law  to  which  insurgents  in  civil  war  have  a  right  to 
appeal  or  upon  which  they  can  rely;  as  all  civil  or  muni 
cipal  rights  in  and  under  the  government  they  seek  to 
destroy  are  lost  to  them  by  making  war,  see  Titles 
"  Policy  of  the  Government,"  "  Civil  Eights,"  "  Civil 
War,"  "Belligerents,"  "Belligerent  Rights,"  "Prize 
Cases,"  "  Capture,"  "  Confiscation,"  "  Blockade." 

note  on  belligerents,  as  subject  to, 425 

allows  insurgents  to  be  treated  by  the  parent  government  as 
rebel  subjects  or  as  belligerents,  as  may  best  suit  its 

policy, 44 

LEGAL   STATUS. 

see  "  Congress,"  "  Political  Questions." 

see  note  on  "  Belligerents,"  page 425 

LEITENSDORFER  v.   WEBB  (20  How.  177),      .        .         .         .522 
LIBERTY. 

civil,  its  safeguards, 170 

inconsistent  with  arbitrary  power,    .         .         .         .         .         .183 

restraint  of,  by  compulsory  military  duty,          .         .         .         .195 


INDEX. 


655 


LIBERTY  —  continued. 

danger  to,  from  military  governments, 315 

secured  by  limits  to  all  war  powers,  .         •         •     168,  200 

how  assailed  by  slaveholders, 

safeguards  of,  which  ought  to  be  secured  in  any  plan  for  recon- 

94.  Q 

struction,       .....••••     **v 

sacrifices  of  our  ancestors  to  obtain  it, 
how  affected  by  civil  war, 
LINCOLN,   PRESIDENT. 

proclamations  relating  to  slavery, 400-404 

proclamation  of  May  19,  1862,  as  to  General   Hunter's  general 

orders  freeing  slaves 400, 401 

proclamation  of  September  22,  1862,  promising  to  issue  proc 
lamation  of  freedom  to  slaves  of  rebels  who  would  not 
lay  down  arms  prior  to  the  following  January,        .     402,  403 
proclamation   of  January    1,    1863,    of  freedom   to    slaves    of 

rebels,  . 403,  404 

views  of,  in  regard  to  compensation  to  slave  owners,         .         .     405 
message  to  Congress  on  confiscation  act  of  July  17,  1862, 

406,  407,  408 
lamentable  consequences  of  his  error  on  the  constitutional  law 

of  confiscation,       .... 

the  effects  of  this  error  as  anticipated  in  1862,        126,  127,  128,  129 
his  opinion  of,  as  te  the  power  of  Congress  to  "  free  a  slave 

within  a  State "  in  1862,         .         .         .         .         •         -409 
his  change  of  opinion  as   to  the  right  to  confiscate  estates  of 

rebels  in  fee,  as  a  punishment  for  treason,      .         .         •     409 
his  statements  on  that  point  to  Mr.  Julian,       .... 
communication  to,  of  letter  of  July  23,  1863,  on  the  return  of 

rebel  States  to  the  Union, 

message  to  Congress  December  8,  1863,  on  the  return  of  rebel 

States  to  the  Union, 250-253 

plan  of  reconstruction, 254>  255'  256 

message  of,  March  6,  1862, 

proposal  to   compensate  slaveholding  States  in  emancipating 

slaves, 401 

proclamations  of,  relating  to  slavery, 

messages  of  amnesty,  &c.,  of, 2o0'  2o° 

proclamations  of,  as  to  rebel  States, 

interpretation  of  the  acts  of  July  17,  1862,  see  note,  478,  .     483,  494 

orders  of,  to  employ  "  contrabands  "  as  laborers,  under  the  act 

of  July  17,  1862,  ch.  195, 483,488 

orders  of,  to  General  Lane,  authorizing  the  recruiting  of  colored 
volunteers  in  Kansas,  under  the  law  of  July  17,  1862, 
ch.201, 489 


656  INDEX. 

LOUISIANA,    STATE   OF,  admitted  to  representation,  &c.,  .         .     445 
LOVEJOY,   HON.   MR.  (Illinois). 

bill  to  inaugurate  a  system  of  public  schools  for  education  of 

colored  children  in  the  District  of  Columbia,          .         .     396 

see  note  on  "  Slavery," 393 

LOYALTY   TO   THE  UNITED   STATES. 

party  asserting  it,  in  any  suit  or  claim  before  any  court,  must 

prove  it  affirmatively,  see  act  1868,  ch.  71,  sec.  3. 
voluntary  residence  in  rebel  State  held  to  be  prima  facie  evi 
dence  of  having  given  aid  and  comfort  to  the  rebellion, 
see  act  1868,  ch.  71,  sec.  3. 

see  "  War  Claims," 342 

Lyons,  Lord, 383,  384,  385 

M. 

MADISON,   PRESIDENT, 75 

MARTIAL  LAW. 

military  government  under, 62 

changes  of  civil  rights  by, 51-54 

what  it  is,  166,186,274 

foundation  of,  ......  jg(5 

its  principles  distinguished  from  arbitrary  power,     .         .      186,  187 

limits  to  all  war  powers, 167,187,200 

liability  to,  not  inconsistent  with  liability  to  civil  process,         .     188 
may  punish  acts  which  in  time  of  peace  would  have  been  inno 
cent,      189 

territorial  extent  of, 167    200 

how  instituted  or  put  in  force, 202 

definition  of, 166.  187,  274 

distinguished  from  military  law, 275 

lex  non  script  a  of  martial  law, 275 

in  the  United  States,  modified  by  military  laws  of  Congress  and 

otherwise,      .....  275 

how  or  by  what  tribunals  administered,    ....  275 

General  Scott's  view  of,    .         .         .         .         .         .  282 

remarks  of  Chief    Justice    Chase,   at    Raleigh,  N.    C.,    1867 

(Appendix), 59G 

remarks  on,  of  Mr.  Justice  Davis,  in  Ex  parte  Milligan  (4  Wal- 

!ace), 460 

when  in  force  is  constitutional  law, 64 

cannot  operate  at  the  same  time  and  place,  and  on  the  same 
subject-matter,  as  civil  or  municipal  law ;  one  must  give 

way  to  the  other, 64 

modified  by  orders  of  the  President,  275 


INDEX.  657 

MARSHALL,   CHIEF   JUSTICE, 34,35 

MASSACHUSETTS  ats.  RHODE  ISLAND  (12  Pet.  657),  .  530 
MAURAN  v.  INSURANCE  CO.  (6  Wallace,  14),  .  .  .  .  587 
McCLELLAN,  GENERAL. 

volunteers,  prior  to  July  17,  1862,  expelled  from  the  military 
service  by,  if  found  by  court  martials  to  be  of  African 
descent, 480 

MEXICO,   NEW. 

organization  of  General  Scott's  military  commissions  in,  281,  313,  314 
claims  of  Laurent  and  others,  residing  in,  see  "  War  Claims,"  note,     337 
resolution  of  Congress  relating  to  Mexico,        ....       38 
MILITARY  ARRESTS. 

in  loyal  States  regarded  with  alarm, 161 

freedom  from,  claimed  for  public  enemies,         ....     162 

on  suspicion,    .........      168,  169 

abuse  of  power  of,  .         .         .         .         .         .         .         .      169,  170 

safeguards  against  abuse,         .......     170 

not  forbidden  by  the  Constitution,    .         .         .         .         .         .173 

without  warrant,       .         .         .         .         .         .         .  174 

without  indictment,  .         .         .         .         .         .         .         .176 

lawful, •  184,  185 

when  sanctioned  by  the  Constitution,        .         .         .         .         .178 

officers   of  the   army  who   make  them  are  not  liable  to  civil 

suits  or  criminal  prosecution  therefor,    .         .         .      181,  182 
on  what  grounds  justifiable,      .......     186 

necessity  of,  .         .         .         .         .         .         .         .         .187 

of  innocent  persons,          .         .         .         .         .         .         .         .     190 

to  prevent  hostilities,        .         .         .         .         .  .         .     193 

cause  of,  not  always  to  be  disclosed,         .         .         .         .         .192 

made  by  all  governments  in  time  of  civil  war,  ....      19') 

who  ought  and  who  ought  not  to  be  arrested,  .         .         .      197-200 
arbitrary,  distinguished  from  discretionary,       .  .         .     183 

arbitrary,  not  consistent  with  free  government,          .          •         •     183 
indemnity  provided  by  stat.  March  3,  1863,      .         .         .      182,  216 

Kees  v.  Tod, 224 

by  order  of  military  courts,  see  act  March  3,  1867,  ch.  155. 
of  aliens,  see  "  Aliens." 

indemnity  for,  when  claimed  by  non-neutral  aliens,  .         .         .     36.3 
orders  from  proper  authority,  a  defence  against  suits  or  prose 
cutions  for  any  search,  seizure,  arrest,  or  imprisonment, 
&c.,  &c.,  made  before  the  passage  of  acts  March  3,  1863, 
ch.  81,  and  May  11,  1866,  ch.  80,  page  .         .      181,  182 

see  "  Indemnity." 

'83 


658  INDEX. 

MILITARY   COMMANDERS. 

their  powers  and  responsibilities,      ......     167 

powers   of,  may  be  delegated;  obedience  to   orders   a  justifica 
tion,       .          .         .          .181 

making  arrests  not  liable  to  civil  or  criminal  prosecutions,  .  181 
need  not  always  disclose  to  courts  the  cause  of  arrests,  .  .  192 
duty  of,  in  case  of  service  on  them  of  writ  of  habeas  corpus,  .  202 
instructions  of  War  Department  on  this  matter,  .  .  .  213 

indemnity  act,  March  3,  1863, 216 

Kees  v.  Tod, 216 

certain    acts    of,  ratified  by  stat.   March  2,   1867,  ch.  155,  see 

note  on  "  Military  Government." 
see  also  indemnity  act  of  June  27,  1868,  ch.  276. 
protection  of,  by  act  1868,  ch.  276,  in  relation  to  suits  brought 
against  them  for  having  administered  the  acts  of  Con 
gress  relating  to  captured  and  abandoned  property,       .     182 
MILITARY   COMMISSIONS. 

recognized  by  statute,       ........     275 

first  introduced  by  General  Scott,     ......     281 

General  Scott's  order  in  Mexico,       .         .         .         .         .         .281 

how  organized, 282 

how  far  they  interfered   with  the    ordinary   administration   of 

municipal  laws,      ........     282 

are  founded  on  war  power  alone, 282 

recognized  by  stat.  March  5,  1863,  ch.  75,  ....  283 
jurisdiction  conferred  on,  by  Congress,  over  cases  of  murder, 

&c.,  &c., 283 

•    jurisdiction  of,  over  spies,         .......     283 

as  organized  by  President  Lincoln, 284 

of  General  Butler,  General  Shepley,  &c., 284 

see  opinion  of  Attorney  General  on,  in  Weaver's  case. 

acts  of,  ratified  and  confirmed  by  act   March  2,  1867,  ch.  155. 

see  "  Indemnity." 

Confederate  laws  upon,  see  "  Confederate  Laws  on." 

the  decision  of  the  Supreme  Court  in,  see  Appendix  on. 

decision  of  joint  military  commission  on  claims  of  Laurent,  note, 

page 337 

see  note  on  "  Military  Government,"  on, 427 

note  to  43d  edition  upon, 391 

remarks  on   the   case   of  Ex   parte   Milligan,  in   the   Supreme 

Court, 460-463 

MILITARY    COURTS. 

exercise  no  part  or  degree  of  the  judicial  power  of  the  civil 

courts  under  the  Constitution, 278 

see  "  Judicial  power." 


INDEX. 


659 


MILITARY   COURTS  —  continued. 

jurisdiction  of,  .........     287 

no  appeal  from,  to  judicial  courts, 280 

are  they  within  the  prohibitions  of  the  Constitution  ?  .  289,  598 
acts  of,  confirmed  by  law,  act  March  2,  1867,  ch.  155,  .  .  446 
Confederate  laws  upon,  viz.  :  — 

October  9,  1862,       ....  .  447-449 

October  13,  1862, .449 

May  1,  1863,     ...  .     449 

May  1,  1863,  J.  R.,  .         ...  .      449,450 

February  13,  1864,  ....  .451 

acts  of,  during  the  rebellion,  confirmed  ;  civil  courts  have  no 
subsequent  jurisdiction  over  their  acts  (act  March  2,  1867, 

ch.  155),  see  note, 446 

Ex  parte  Milligan,   .  •     536 

remarks  on,       ......••••     460 

constitutional  power  of  the  President  to  establish,  affirmed  by 
the  Supreme  Court,  see  "  The  Grapeshot"  (9  Wallace, 
131),  Appendix,    ....  .     598 

MILITARY    CRIMES,    see  "  Crimes." 

MILITARY   FORCES. 

"  the  United   States   may  require  all   subjects  to  do  military 

duty," 20 

act  of  March  3,  1863,  for  enrolment  of,  is  constitutional,  .     205 

so  decided  by  the  Supreme  Court,  note, 205 

resistance  to  draft  justifies  arrest  by,  ....  189,  199 
how  to  act  when  served  by  writ  of  habeas  corpus,  .  .  .  213 
how  judges  violating  the  law  to  be  treated  by  them,  .  .213 
indemnity  for  arrest  by,  when  to  be  allowed,  and  when  refused,  211 
acts  of  Congress  providing  for  the  organization  of,  history  of, 

note, 478-494 

who  liable  to  be  enrolled  in,  .  .  .  .  •  •  .10 
introduction  of  colored  soldiers  into  (see  note,  p.  20),  .  478,  494 
debates  in  Congress  on  the  introduction  of  colored  soldiers 

into, 494,  508 

laws  for  raising  and  organizing,         .         .         •         •         •         .4/8 
MILITARY   GOVERNMENT. 

preface  to, 259 

importance  of  the  subject,         ....•••     259 
regard  for  the  proper  limitation  of  authority  of  the  departments 
of  government  in  relation  to,  will  enable  us  to  avoid  fu 
ture  embarrassment,       ...••••     -'">" 

its  methods  or  means,  and  its  objects, 261 

in  some  form  is  necessary  to  secure  a  conquest, 


660  INDEX. 

MILITARY   GOVERNMENT  —  continued. 

why  it  is  essential  to  secure  a  conquest, 263 

is  a  mild  form  of  hostilities,      ....          ...  264 

is  a  liberal  concession  to  the  insurgents,    .....  265 

there  must  be  military  government,  or  no  government,     .         .  266 
the  right  to   erect,  is  an  essential  part  of  the   war  power,  is 

founded  in  necessity  and  sanctioned  by  authority,  .         .  267 

leading  cases,  with  authorities,  relating  to,        ....  268 

the  Constitution  authorizes  the  President  to  establish,  when,    .  269 
power  to  establish  not  granted  in  express  terms,       .         .         .  271 
is  an  act  of  war,  a  mode  of  retaining  a  conquest,       .         .         .  272 
duty  of  the  conqueror  to  govern  those  whom   he  has  subju 
gated,    273 

right  of,  recognized  by  courts,  &c.,  ......  273 

distribution  of  powers  under,    .......  274 

different  kinds  of  law  of  war  —  martial  law,  military  law,  lex 

non  script  a,  &c.,    .......     274,  275 

military  tribunals,     .........  275 

power  given  by  the  Constitution  to  Congress  to  establish  courts 

of  war,    .........     275,276 

clauses  cited,  on  which  that  power  is  based,       .         .         .     275,  276 
clauses  in  the  Constitution  which  authorize  the  President  to 

create  military  governments  cited,          ....  269 

necessity  of,  in  the  present  condition  of  the  insurgent  States,    .  269 
authority  to  institute   such   governments  belongs  both  to  the 

President  and  to  Congress, 269 

the  right  of  Congress  to  establish  such  governments  is  unques 
tionable,         .         . 270 

the  basis  of  the  President's  power  to  establish,  stated,       .         .  270 

power  of  the  President  to  establish  courts  of  war,     .         .         .  276 

do  courts  of  war  exercise  judicial  power?           ....  277 

would  judicial  courts  be  useful  as  war  courts  ?  278 

courts  martial — legislative  history  of, 279 

recognized  and  established  by  statutes,       .         .         .         .279 

military  courts  of  inquiry,         .......  280 

established  by  statute  law, 280 

military  commissions,       .         .         .         .         .         .         .         .281 

.  under  General  Scott, 281 

under  our  statutes, 281 

similar  courts  instituted  by  President  Lincoln,          .         .         .  283 
courts  of  civil  jurisdiction  under  military  authority,           .         .  284 
General  Shepley,  General   Butler,  Judge  Peabody,  Sequestra 
tion  Commission,  ........  284 

jurisdiction  of  such  courts,        .......  289 

does  the  Constitution  prohibit  such  courts  ?  288 


INDEX. 


661 


MILITARY   GOVERNMENT  —  continued. 

examination  of  the  5th,  6th,  and  7th  amendments  of  the  Con 
stitution,  288, 289 

rebels,  what  rights  they  claim  as  inconsistent  with,    .         .         .     290 
what  rights  are  conceded  to  them,     .....     292 
public  enemies  —  are  the  inhabitants  of  seceded  States  public 

enemies,  and  therefore  subject  to  ?          .         .         .         .     293 
the  question  whether  the  inhabitants  of  insurrectionary  States 
are  to  be  deemed  public  enemies  is  determined  by  the 
political  departments  of  our  government,  not  by  the  ju 
diciary,  294,295 

the  political  departments  of  our  government  have  finally  deter 
mined  that  they  are  public  enemies,  and  thus  subject  to,     296 
the  President,  and  the  acts  of  the  Executive,  on  that  subject,  .     296 
Congress,  and  the  acts  of  the  Legislative  Department,  on  that 

subject,  .  -      299-304 

the  judiciary,  and  the  position  of  the  Supreme  Court  in  refer 
ence  to,  having  adopted  the  action  of  the  political  de 
partments,  as  it  was  bound  by  the  Constitution  to  do,  .  304 

delegation  of  authority, 307 

how  created  and  controlled,  and  how  terminated  by  Congress,      209 
limits  of  power  —  conflict  between  the  power  of  Congress  and 

that  of  the  President,     .         .         .  •         •         .311 

how  terminated  by  Congress, 312 

when  the  power  of,  will  cease, 313 

when  peace  is  recognized,  military  governments  are  under  the 

sole  control  of  Congress, 314 

the  President  is  liable  to  impeachment  if,  in  time  of  peace,  he 

disobeys  the  laws  of  Congress  relating  to,      .         .         •     314 
reasons  stated  why  the  President  may  establish, 
jurisdiction  of,  when  established  by  the  commander-in-chief,     .     316 

the  law  administered  by, .31, 

as  to  local  laws  in  conquered  districts,  whether  the  municipal 
laws  of  the  conquered  district  remain  in  force  proprio 

vigore,  unless  altered,  &c., 321 

what  laws  of  the  invading  country  extend  ipso  vigore  over  the. 

"91 

subjugated  district,        .         . 
the  suppression  of  the  present  rebellion  is  not  the  conquest  of 

a  foreign  country, • 

distinction  between  alien  and  public  enemy,      .         •         .321,  32^ 
President's  proclamation,  effect  of,  in  hostile  country  not  un- 

Q09 

der  our  control, 

United  States  judicial  courts  may  be  reestablished,  but  are  at 

present  (1864)  useless  in  the  rebellious  districts,    .         .     324 


662  INDEX. 

MILITARY   GOVERNMENT  —  continued. 
cases  relating  to  — 

Fleming  v.  Page  (9  How.  614),  .  .  .  .63,  512 
Cross  t>.  Harrison  (16  How.  189), 516 

Jecker  v.  Montgomery  (18  How.  112),  ....  519 
Dynes  v.  Hoover  (20  How.  79),  .....  520 
Leitensdorfer  v.  Webb  (20  How.  177),  ....  522 
Vallancligham's  Case,  .......  524 

the  Prize  Cases, 141,  238 

Kees  v.  Tod, 216 

see  recent  cases  in  Appendix,    .....      512-610 

of  rebel  territory  authorized  by  the  Constitution,      ...       62 
over  rebel  States  should  be  continued  until  they  perform  cer 
tain  conditions,      .......       65,  248 

embodied  in  Freedman's  Bureau  acts,  note,      .         .         .         .261 

and  in  reconstruction  acts,  note,         .         .         .         .         .261 

principles  of,  sustained  in  Georgia  v.  Stanton,  note,  .         .261 

address    of  Chase,  Chief  Justice,  at  Raleigh,  N.  C.,  June  6, 

1867,  referring  to, 596 

note  in  43d  edition,  on, ,     .         .         .     427 

note  to  Ex  parte  Milligan, 460 

report  of  case  of  Ex  parte  Milligan,          .....     536 

note  to  43d  edition,  on,    ........     427 

state  of  public  opinion  on  the  right  of  (when  the  first  edition 

of  this  essay  was  published),  note,          ....     427 

power  exercised  by  President  Lincoln  to  create,       .         .         .     428 
governors  to  execute,  appointed  under  acts  of  Congress,  .         .         1 
power  exercised  by  Congress  to  erect,  was  used  in  the  Freed 
man's  Bureau  act,  .......     428 

in  the  reconstruction  acts,         .......     434 

in  the  act  March  2,  1867, 434 

in  the  act  March  22,  1867, 436 

in  the  act  July  19,  1867, 439 

three  classes  of,  note,        ........     442 

created  under  laws  of  Congress,         ......     442 

•  the  history  of  their  origin  and  design,        ....     442-444 

the  decision  in  Georgia  v.  Stanton  that  judicial  courts  cannot 

decide  political  questions,       ......     445 

the  Supreme  Court  cannot  interfere  with  the  military  govern 
ments  under  the  reconstruction  laws,     ....     445 

remarks  of  counsel  for  the  State  of  Georgia,  in  that  case,  see 

Georgia  v.  Stanton,  Appendix, 588 

decision  of  the  court  in  this  case,      ......     589 

acts  of  military  courts  under,  have  been  confirmed  by  laws  of 


INDEX.  663 

MILITARY    GOVERNMENT  —  continued. 

Congress  ;  civil  courts  have  no  subsequent  jurisdiction 
over  them,  see  act  March  2,  1867,          ....     446 

see  Index,  "  Military  Courts." 

Chase,  Chief  Justice,  remarks  at  Raleigh,  N.  C.5  1867,  Ap 
pendix,  ......•••  596 

see  "  Confederate  Acts  organizing  Military  Courts,"          .         .     447 

see  Index, "  Confederates."  "  Rebels,"  "  Confiscation  Acts  of  the 
Confederates,"  &c. 

MILITARY  LAW. 

definition  of, •  275 

distinguished  from  martial  law, 274,  275 

see  "  Martial  Law." 

MILITARY   POWER. 

of  the  President  may  be  effectually  controlled  by  refusal  of  Con 
gress  to  vote  supplies, 82 

and  by  his  liability  to  impeachment, 
MILITARY   SERVICE   OF   THE  UNITED    STATES. 

all  subjects  of  the  United  States  may  be  required  to  perform  it,  20, 209 

whoever  opposes  that  right  strikes  at  the  life  of  the  nation,      .     210 

what  class  of  aliens  is  liable  to, 

what  class  of  aliens  is  not  liable  to. 

see  Title,  "  Alien." 

aliens  not  liable   to,  although  they  have   served  in  the   rebel 

'-574 
army,     ....•••••• 

aliens  voluntarily  enlisting  in  our  service  not  entitled  to  be  dis 
charged,  .  .  .  .  •  •  •  •  .3/4 

aliens  forced  into  the  enemy's  service  and  afterwards  captured 
by  our  forces,  whether  entitled  to  discharge, 

acts  of  Congress  for  calling  the  military  forces  into,  history  of, 

478-494 

acts  done  by  officers,  in  pursuance  of  orders,  are  justifiable,     .     182 

89 

see  note  to  page 

this  principle  confirmed  by  act   of  Congress,  March  2,  1867, 

ch.  155. 

see  acts  March  3,  1863,  May  11,  1866,  and  1868,  ch.  276. 
act  of  May  8,  1792,  the  foundation  of  the  military  system  of  the 

United  States,        ....  •  480,  504 

MILITIA. 

law  of  the  United  States  regulates  the  qualifications  of  persons 

who  may  be  enrolled  as  State  militia,     . 
see  note   on  "Laws  for  raising  and  organizing  our   military 

forces,"  pages         .         .  •      478-480 

of  the  States,  called  out  under  act  1795,  note,  .         .         •     478 


664  INDEX. 

MILITIA  —  continued. 

President's  call  of  May  3,  1861,  for  42,034  men,  .  .  .478 
colored  men  excluded  from,  by  law,  prior  to  1862,  .  .  .  478 
act  May  8,  1792,  in  force  till  1862,  excludes  colored  persons 

from  militia  of  States, 479,  480 

General  McClellan  enforced  this  law  relating  to,  .         .     480 

all  applications  of  colored  men  to  enlist  in,  prior  to  1862.  refused, 

480,  481 

acts  July  17,  1862,  ch.  195  and  ch.  205,  relating  to,  their  pro 
visions  stated, 481,  484 

whether  either,  and  which,  of  these  acts  was  for  the  increase  of 

the  army, 480-483 

the  true  construction  of  these  acts,  ......     483 

use  made  by  President  Lincoln  of  the  power  conferred  on  him 

by  the  confiscation  act  of  July  17,  1862,         .         .         .486 
act  of  July  17,  1862,  ch.  205,  debates  in  Congress  upon  arming 

negroes. 494,  508 

enrolment  act  of  1863, 508 

amended  enrolment  act  of  1864, 5.09 

equalization  of  pay  of  colored  and  white  soldiers,     .         .         .     510 
who  shall  constitute  militia  of  the  United  States  must  be  de 
termined  by  law  of  Congress,         .         .         .         .23,  478 
•who  constitute  the  militia  of  the  States  must  be  determined  in 

like  manner  (see  note  to  p.  20), 478 

law  of  July  17,  1862,  ch.  201,  for  amending  the  act  calling 
forth  the  militia  and  introducing  colored  persons  into 
the  army,  its  origin,  history,  and  debates  in  Congress 
on, 478-508 

MILITIA  LAWS. 

how  to  be  used  by  Congress  to  destroy  slavery,        .         .         .     132 

of  States  are  subject  to  the  laws  of  Congress  as  to  the  persons 
who  may  be  lawfully  enrolled  in  the  militia  of  the  sev 
eral  States,  note,  ........  480 

effect  of,  on  slaveholder's  claim  to  indemnity,    ....      24 

see  "  Military  Service." 

MILLER,  MR.  JUSTICE, 269,  607 

MILLIGAN,   Ex  parte  (4  Wallace,  106), 536 

remarks  on  case  of,  ........     460 

MISSISSIPPI,   STATE   OF. 

admitted  to  representation,  &c.,        ......     445 

v.  Andrew  Johnson  (4  Wallace,  497),        .....     579 

MISSOURI,    STATE   OF,   ats.  CUMMINGS  (4  Wallace,  316),       .     556 
MONTGOMERY   ats.   JECKER  (18  How.  112),    ....     519 


INDEX. 


665 


MORILLO,   GENERAL,  •        •      73 

MORINO   ats.   UNITED   STATES    (1  Wallace,  400),    .         .        -     531 

MORMONS. 

their  supposed  claim  to  indemnity,    ....          22,  24,  140 

MORRILL,   HON.   LOT  M.,   SENATOR   (Me.). 

bill  to  confiscate  rebel  property,  and  free  slaves  of  rebels,         .     394 

MURDER. 

Jurisdiction  of  military  commissions  over  certain  persons  guil- 

tyof, -283 

N. 
NAPOLEON,  EMPEROR,      ...  ...      73 

NATURALIZATION. 

its  effect  on  the  rights  and  liabilities  of  aliens,          .         .         .     338 
does  not  protect  the  property  of  one  who,  by  returning  to  his 

native  country,  regains  his  citizenship,   .         .         .         .347 

NATURALIZATION   LAWS. 

effect  of,  on  claims  of  slaveholder  for  indemnity,        .         .  22,  23,  24 
aliens  having  served  in  our  army  and  having  been  honorably 

discharged,  entitled  to  naturalization  by,  338 

see  "  Aliens." 

NAVY   AGENTS. 

their  liability  to  courts  martial  denied, 380 

NELSON,   MR.   JUSTICE,      ...  ....     529 

NON-INTERCOURSE. 

right  to  enforce,  as  against  belligerents,  see  "  Prize  Cases,"  141,  238 

acts  to  provide  for,  effect  of, 299-303 

legal  effect  of,  . 
NORTH   CAROLINA. 

admitted  to  representation,  &c. 


o. 

OATHS. 

required  of  aliens  engaged  in  commerce  with  rebels  by  c< 

of  the  United  States, 

objection  to,  by  Lord  Lyons,  and  reply, 38- 

OPINIONS. 

of  the  Supreme  Court,  in  cases  printed  in  whole  or  in  part  in 
the  Appendix,  see  "  Supreme  Court." 

84 


666  INDEX. 


p. 

PAGE  ats.  FLEMING  (9  How.  614), 512 

PALMERSTOX.  ^ 

opinion  of,  as  to  non-liability  of  the  United  States  for  damage  in 

bombarding  Greytown,  ......     336 

as  to  claims  growing  out  of  the  bombardment  of  Uleaborg,     336 
of  Copenhagen,  ........     336 

PEACE. 

questions  whether  the  United  States  are  at  war  or  at  peace 
with  foreign  nations,  or  with  insurgents  in  our  own 
country,  are  purely  political  questions,  to  be  decided  by 

Congress, 296 

see  cases  of  the  "  Grapeshot," 599,  601 

see  Title,  "  Policy  of  the  Government." 

may  be  declared  or  recognized  by  Congress,     .         .         .         .312 
restored  by  acts  of  the  President  and  of  Congress,  August  20, 
1866,  as  to  persons  claiming  the  benefit  of  certain  laws, 

606,  607 

PETERHOFF,    CASE   OF  (5  Wallace,  60), 582 

PIRACY. 

persons  convicted  of,  exchanged  by  the  United  States  as  pris 
oners  of  war, 291 

POLICY   OF   THE    GOVERNMENT. 

whether  belligerents  (rebels)  shall  be  allowed  civil  rights  under 
the  Constitution,  must  be  decided  by  the  political  de 
partments  of  the  government, 53 

whether  the  rebels  shall  be  deemed  mere  insurgents  or  public 
enemies  can  be  decided  only  by  the  political  depart 
ments,  293,  295,  296 

all  political  questions  must  be  decided  by  the  political  depart 
ments  as,  for  example, 
questions  as  to  boundary  between  nations,        ....     29-1 

sovereignty  of  foreign  country, 294 

recognition  of  State  governments, 294 

status  of  foreign  nations, 294 

status  of  insurgents  and  rebels,  .....  294 
questions  of  reconstruction,  .....  295,  296 
whether  rebels  shall  have  belligerent  rights,  .  .  .  296 
whether,  and  when,  a  state  of  peace  shall  be  recognized  or 

declared, 296 

on  all  political  questions  the  Supreme  Court  must  follow  the 

decisions  of  the  political  departments,     .         .         ...     296 


INDEX.  667 

POLICY   OF   THE   GOVERNMENT  —  continued. 

of  President  Lincoln,  as  to  the  status  of  the  rebels;  his  acts 

and  proclamations.         ......      296-299 

of  Congress  on  the  same  subject, 299-303 

result  of  the  action  of  the  political  departments  was  to  declare 

the  rebels  public  enemies,      .         .     *  .         .         .         .     303 

this  decision  of,  followed  by  Supreme  Court,     .         .      304,  305,  306 
on  the  question  of  confiscated  and  abandoned  lands,  letter  to 

Hon.  G.  W.  Julian  upon,        ......     470 

recommended,  on  the  subject  of  reconstruction,         .         .         .     248 
to  protect  from  capture  the  property  of  all  loyal  citizens  in  dis 
loyal  districts. 58 

see  cases  decided  in  the  Supreme  Court  on  this  subject,  Ap 
pendix,  512-610 

Georgia  v.  Stanton,  &c., 445,  588 

is  to  decide  terms  of  amnesty,  see  "  War  Powers." 

is  to  determine  legal  status  of  rebels,  see  "  Rebels,''  "  Congress," 

"  Belligerents,"      . 425 

POLITICAL   PARTIES. 

their  claims  to  or  waivers  of  powers  in  the  Constitution  not  to 

be  regarded  as  authority,        .....     139,  140 
PREFACE. 

to  the  43d  edition, vii.,  viii.,  ix. 

to  the  "  War  Powers," iii. 

to  "  Military  Arrests," 159,  160 

to  "  Reconstruction,"  note, 229 

to  "  Military  Government,"      .......     259 

to  "  War  Claims," 329,  330 

PRESIDENT   OF   THE  UNITED   STATES. 

is  commander-in-chief  of  the  army  and  navy  of  the  United 
States,  and  of  the  militia  of  the  several  States  when 
called  into  actual  service  of  the  United  States  (Constitu 
tion,  Art.  11,  sec.  1), 82 

has  the  sole  power  and  responsibility  of  judging,  when  the  exi 
gency  arises,  in  which  he  has  authority  under  the  Con 
stitution  to  call  forth  the  militia,  and  his  decision  is  con 
clusive  upon  all  others 58,  67 

is  not  limited  by  the  Constitution,  and  cannot  be  controlled  by 
Congress  in   respect  to  the  manner  of  conducting  his 
purely  military  operations,     ......       57 

this  duty  is  left  to  his  own  discretion,  guided  by  the  usages  and 

principles  of  civilized  warfare,         .....       58 

the  powers  of,  to  carry  on  war  have  no  limit  other  than  the  law 
of  nations  and  such  rules  as  Congress  have  authority  to 


668  INDEX. 

PRESIDENT   OF  THE  UNITED   STATES  —  continued. 

pass  for  the  regulation  of  the  army,  captures,  <£c.,  raising 

money,  &c., 57 

see  "  Conquest,"  "  Capture." 

has  the  war  power  to  exercise  full  belligerent  rights  against  all 
persons  in  arms,  against  all  property  situated  in  belliger 
ent  districts, 57 

and  against  all  persons,  whether  friend  or  foe,  who  voluntarily 
reside  in  districts  which  have  been  declared  in  rebellion, 
they  being  in  law  public  enemies  of  the  United  States,  .       57 
see  Title  "  Public  Enemies,"  "  Belligerent  Rights." 
general  war  powers  of,  enumerated,     .         .         .     82,  163-165,  390 
war  powers  of,  not  in  conflict  with  those  of  Congress,         .      30,  68 
has  a  right  to  seize  and  capture  in  the   enemy's  country  what 
ever  property  he  may  deem  necessary  for  sustenance  of 
his  military  forces,  whether  it  belongs  to  friend  or  foe,  .       57 
but  he  may,  as  a  matter  of  policy,  order  that  no  property  of 
loyal  citizens  residing  in  disloyal  States  shall  be  seized 

without  compensation 58 

policy  of,  as  actually  applied,    .......       58 

reasons  for  it  stated,          .......       58 

war  power  of,  to  emancipate  enemy's  slaves,     ....       66 

why  this  power  exists,      ........       66 

is  sole  judge  how  and  when  to  use  it,  .         .         .         .67 

this  power  of,  is  not  inconsistent  with  that  of  Congress  to  eman 
cipate  slaves,         ........         30,  68 

duty  of,  to  emancipate  slaves  when  such  a  course  becomes  es 
sential  as  a  means  of  securing  public  welfare  and  the 
common  defence  in  time  of  civil  war  (Preface,  p.  vi.), 

pages 5,  6,  7,  8,  140 

duty  of,  to  destroy  slavery  in   the  (then)  present  condition  of 

affairs  (Preface,  p<  vi.,  vii.),  pages          .         .      5,  6,  7,  8,  140 
power  to  suspend  the  habeas  corpus,        .....     202 

power  to  establish  martial  law,          ......     202 

when  liable  to  impeachment  for  refusing  to  obey  laws  of  Con 
gress  as  to  military  governments,  .....     314 

authorized  by  the  Constitution  to  establish  military  govern 
ment,  269 

his  authority  to  erect  military  government  under  the  guarantees 

of  the  Constitution  alluded  to, 270 

clauses  of  the  Constitution  on  which  the  power  to  create  mili 
tary  government  rests,  ......     270 

his  operations  in  war  regulated  and  interpreted  by  the  laws  of 

war, 270 


INDEX.  669 

PRESIDENT   OF   THE  UNITED   STATES  —  continued. 

cases  cited  on  this  point,          .         .         .         .         .         .         .271 

his  powers,  and  the  reason  of  granting  them  to  him,         .         .271 

his  power  to  establish  courts  of  war, 276 

his  order  establishing  a  provisional  court  in  Louisiana,     .         .     285 

PRIVATE  PROPERTY. 

right  of  government  to  appropriate  to  public  use,  ...  17 
but  not  without  the  existence  of  a  public  necessity,  Preface,  page  iv 
foundation  of  this  right,  .  .  .  .  .  .  .  .17 

indemnity  for, 18 

public  use  of,  what  it  is, 19 

in  slaves  may  be  appropriated  to  public  use,  ...  20,  28 
is  the  right  to  appropriate  it  superseded  by  the  war  power  of 

seizure  ?.........       26 

importance  and  danger  of  this  power, 29 

see  "  Slaves,"  "  Indemnity,"  "  Capture." 

private  property,  public  use  of,  what  it  is,          .         .         .         .       19 

impressment  of  slaves,  and  appropriation  of  them  to  public  use 

as  private  property,  by  act  of  Confederate  Congress,  stat. 

1864,  ch.  79,  see  note  to, 26 

policy  of  the  government  relating  to  the  employment  of  slaves, 

and  to    indemnity  therefor  as  such,  see    "  Indemnity," 

"  Slaves,"  "  Slaveholders." 
capture  of,  on  land,  see  "  Capture." 
confiscation  of,  see  "  Confiscation." 

destruction  of,  see  "  Public  Enemy,"  "Belligerent  Rights." 
capture  of,  on  the  sea,  see  "  Prize." 
of  aliens,  see  "  Aliens." 

PRIVATE  RIGHTS. 

must  be  subordinate  to  public  welfare,    .  .     210 

PRIZE. 

courts  of,          ......••••       48 

cases  of  prize  decided  by  the  Supreme  Court  in  1863,        .         .     141 

analysis  of, 238 

see  Title  "  Capture." 

see  cases  decided  by  the  Supreme  Court,  Appendix,  .  .  512-610 
see  note  on  Capture  of  Enemy's  Property,  451 

the  law  of,  has  no  application  to  the  case  of  personal  or  private 
enemies,  and  cannot  be  invoked  to  justify  a  capture  of 
private  property,  unless  there  exists  a  public  enemy  and 

a  state  of  war, 305 

in  a  case  of,  a  public  enemy  cannot  appear  as  a  claimant,  note,  215 
see  note  on  war  powers  used  by  the  government,  ...  .  390 


670  INDEX. 

PROCESS  IN  REM. 

recommended  as  preferable  to  process  in  personam,  in  certain 

cases, 470,  471 

PROCLAMATION  — see  "  War." 

supposed  effect  of  President  Johnson's  proclamation  of  peace, 

April,  1866, 442 

of  August  20,  1866,  as  to  courts  in  rebel  districts,  .  .  .  606 
see  Chase,  C.  J.,  remarks  at  Raleigh,  N.  C.,  Appendix,  .  .  596 
see,  of  President  Lincoln,  as  to  rebels,  ....  296,  299 
see  "  Lincoln,  President." 

effect  of,  upon  public  enemies,  while  maintaining  successful  re 
sistance  to  the  government,  .....      322,  323 
of  President  Johnson,  &c.,  August  20,  1866,  declaring  peace, 
and  effect  of,  on  certain  parties,  claimants  under  act  of 

Congress, 606 

PROVISIONAL   COURT. 

established  in  Louisiana  by  order  of  President  Lincoln,    .         .     285 

not  prohibited  by  the  Constitution, 288 

powers  of  the  President  to  establish,          .....     284 
affirmed  by  the  Supreme  Court,  in  1870,  in  the  case  of  the  Grape- 
shot,      131,  601 

see  "  Military  Courts." 
PUBLIC  ENEMIES. 

who  are  such,  ....  40-46,52,54,58,61,237,240,391 
how  and  by  whom  recognized  or  declared  as  such,  .  240,  241 
rights  of  the  government  against,  ....  240-242 

see  "  Civil  Rights,"  "  Belligerent  Rights,"  "  Capture,"  "  Con 
fiscation,"  "  Slavery,"  "  Military  Government,"  "  Recon 
struction,"  "  Military  Arrests." 

rights  of  the  government  against  their  property,  .  .  .  240 
wherever  found,  if  they  resist,  may  be  captured  or  killed,  and  if 

captured,  may  be  detained  as  prisoner  of  war,         .         .167 

loss  of  political  and  civil  rights  by, 244,  246 

see  "  Reconstruction,"  "  Civil  Rights,"  "  Policy  of  the  Govern 
ment." 

subjection  of,  to  the  will  of  the  conqueror,  .  .  .  244,  246 
see  "  Conquest." 

distinguished  from  alien  enemies, 322 

have  no  right  to  prosecute  suits  in  the  courts  of  the  United  States,     21 5 
cannot  appear  as  claimants  in  a  case  of  prize,  ....     215 

authorities  on  this  point,  note,  .         .         .         .         .         .215 

confirmed  in  case  of  Mrs.  Alexander's  cotton,  ....-•   534 

have  no  right  to  vote  for  electors  of  President  and  Vice-Presi 
dent,  note, 244 


INDEX. 


671 


PUBLIC   ENEMIES  —  continued. 

see  joint  resolution,  No.  12,  February  8,  1865,  .         .  244 

appeals  to  the  Supreme  Court,  from  rebel  districts,  not  heard 
by  the  Supreme  Court  during  the  war,  see  Chief  Justice 
Chase's  remarks  at  Raleigh, 597 

freedom  from  arrest  claimed  for, 

see  "  Military  Arrests." 

voluntary  residence  in  rebel  States  is  made,  by  stat.  1868,  ch. 
71,  sec.  3,  prima  facie  evidence  of  having  given  aid  and 
comfort  to  the  rebellion,  see  "  War  Claims." 

effect  upon,  of  the  proclamations  of  the  President,  and  the  laws 

of  Congress, ;>  •  322,323 

letter  to  Mr.  Julian  ;  note  as  to  the  rights  and  liabilities  of,      .     470 


R. 

REBELLION. 

is  "the  suppression  of"   "making  war  wrongfully"  on  citizens 

of  the  United  States  ? 42 

what  condition  or  temper  towards  the  Union  will  result  from 

f)O1 

rebellion, 

see  "  Capture,"  "  Civil  Rights,"  "  Civil  War,"  "  Commercial 
Intercourse,"  "  Confederate  States,"  "  Confiscation," 
"  Congress,"  "  Conquest,"  "  Contraband,"  "  Courts  of 
War,"  "  Crimes,"  "  Enemies,"  "  Exchange  of  Prison 
ers,"  "  Franchise,"  "  Freedman's  Bureau,"  "  Habeas 
Corpus,"  "  Indemnity,"  "  Lands  in  Rebel  States,"  "  Law," 
"Law  of  Nations,"  "  Martial  Law,"  "  Military  Arrests," 
«  Military  Courts,"  "  Military  Commissions,"  "  Military 
Government,"  «  Piracy,"  "  Policy  of  the  Government," 
"President,"  "Private  Property,"  "  Prize,"  "  Public  En 
emies,"  "  Rebels,"  "  Reconstruction,"  "  Rights  guaran 
teed  by  the  Constitution,"  "  Slavery,"  "  Slaves,"  "  State 
Rights,"  "Trading  or  Commerce  with  the  Enemy," 
"Treason,"  "War,"  "  War  Powers." 

when  deemed  to  be  suppressed,  so  far  as  concerns  persons  who 
are  intended  to  receive  the  protection  of  the  statute  of 
June  5,  1868,  in  relation  to  abandoned  property,  viz., 
Au-ust  20,  1866,  that  being  the  date  of  the  President's 
proclamation  of  peace,  see  United  States  v.  Anderson, 

•, .  .     603 

Appendix,      . 

REBELS. 

government  has  full  war  powers  against  them, 
may  be  treated  by  the  government,  either  as  belligerents 
subjects, 


672  INDEX. 

REBELS  —  continued. 

whether  entitled  to  civil  rights  is  a  question  of  policy  to  be  de 
cided  by  the  political  departments,          ....  53 
their  probable  future  hatred  of  the  Union,         ....  230 
the  mode  they  will  probably  adopt  of  regaining  State  rights,     .  231 
what  they  claim,  and  do  not  claim,             .         .         .      237,  290,  291 

recognized  as  belligerents, 291 

rights  renounced  by,  or  conceded  to, 292 

whether  they  are  to   be   deemed,  in  law,  public  enemies,  is  a 

political  question,           .         .         .         .         .         .         .  293 

political  questions  are  to  be  .determined  by  the  political  depart 
ments  of  government, 293 

see  "Rebellion,"  "Policy  of  the  Government." 
see  stat.  1868,  ch.  71,  as  to  presumption  of  being  such,  by  rea 
son  of  residence  in  rebel  States, 
see  "  War  Claims." 
by  what  course  of  proceedings  they  become  belligerent  public 

enemies,        .........  236 

how  and  when  the  war  changed  from  a  private  to  a  territorial 

one, 236 

policy  recommended  in  regard  to  landed  estates  of.           .         .  470 
RECONSTRUCTION. 

basis  of,  recommended  in  1862,         ......  65 

war  of  arms  and  war  of  ideas, .  229 

dangers  of,  to  be  guarded  against, 230 

consequences  of  error  in,          .......  232 

State  rights  in  time  of  civil  war,        ......  234 

attitude  of  the  government,  in  the  beginning  of  the  war,  towards 

rebels,  and  towards  loyal  men  in  rebel  districts,      .         .  235 

character  of  the  war  changed  by  subsequent  events,          .         .  235 

consequences  resulting  from  civil  territorial  war,       .         .         .  236 

when  rebellion  became  civil  war,       ......  237 

rights  of  public  enemies  since  the  rebellion  became  a  civil  ter 
ritorial  war, .238 

the  rights  of  rebels  to  be  settled  according  to  the  laws  of  war,  .  242 

State  rights  of  rebels  to  be  allowed  only  by  our  consent,  .         .  244 

State  rights  not  appurtenant  to  land, 245 

forfeiture  not  claimed,  and  right  of  secession  not  admitted,        .  246 
the  pledge  of  the  country  to  its  soldiers  and  citizens  must  be 

kept, 247 

plan  of,  recommended  July  28,  1863, 248 

plan  of,  adopted  by  President  Lincoln, 250 

danger  of  prematurely  recognizing  seceded  States  as  in  the 

Union 234 

probable  effects  of  a  mistake  on  this  point,        ....  234 


INDEX.  673 

RECONSTRUCTION  —  continued. 

message  of  President  Lincoln  on,      ......     245 

proclamation  of  amnesty,         .  .         .     250 

freedman's  bureau  acts,  note, 261 

acts  relating  to,  note,        ........     261 

principles  of,  sustained  by  the  Supreme  Court,  .         .         .     261 

state  of  public  opinion  on,  at  the  date  of  the  publication  of  the 

1st  edition  of  this  essay, 427,428 

Chase,  C.  J.,  remarks  on  at  Raleigh,  N.  C.,  Appendix,       .         .596 
laws  of  Congress  relating  to,  see  note,  Appendix,     .         .      428-442 
acts  of  the  President  relating  to,      .         .         .         .      254,  442,  445 
act  June  22,  1868,  ch.  69,  for  admitting  Arkansas  to  represen 
tation  in  Congress, 249 

act  June  25,  1868,  ch.  70,  for  admitting  six  rebel  States,  &c.,    .     249 
see  act   for  continuing  Freedman's  Bureau   one  year.  July  6, 

1868,  ch.  135. 
note  to  the  43d  edition,  on  reconstruction,         .         .         .       427-451 

REPRISALS, 

domiciled  aliens  liable  to,          .......     337 

travellers  not  liable  to, 337 

REPUBLICAN  FORM   OF   GOVERNMENT. 

guarantee  of  the  United  States  that  every  State  in  the  Union 

shall  have  a  republican  form  of  government,  .        65,  269,  310 

RESIDENCE  IN  ENEMY'S   COUNTRY. 

voluntary  residence  in  a  rebel  State  is  prima  facie  evidence  of 

having  given  aid  and  comfort  to  the  rebellion,        .         .     342 
and  is  made  so  by  stat.,  see  act  1868,  ch.  71,  sec.  3. 

see  "  Alien."' 
RETURN  OF   REBEL    STATES   TO   THE   UNION,  .        .     229,  250 

see  "  Reconstruction." 

RHODE   ISLAND   v.    MASSACHUSETTS    (12  Pet.  657),    .  530 

RICE,   HON.   B.  F.,   SENATOR,    .         .  50;} 

RIGHTS   GUARANTEED    TO   CITIZENS    BY    THE    CONSTI 
TUTION. 

changed  when  martial  law  is  in  force, 51 

suspended  during  war,  under  certain  circumstances, 

of  freedom  of  speech,        ....•••• 

of  freedom  of  the  press,    . 

of  trial  by  jury,        ....-•••• 

to  life,  liberty,  and  property,    . 

to  keep  and  bear  arms,     . 

private  property  not  to  be  taken  without  due   process  of  law,   15,  52 

85 


674  INDEX. 

RIGHTS  GUARANTEED  TO  CITIZENS  BY  THE  CONSTI 
TUTION  —  continued. 

guaranteed  to  peaceful  citizens  by  the  Constitution  do  not  be 
long  to  them  after  they  have  become  belligerents  against 
their  own  government,  ......          48-54 

statement  of,    ..........       49 

claims  of,  stated  on  p.  49  not  applicable  to  a  state  of  war,          .       49 
not  in  derogation  of  the  rights  of  the  government  to  deal  with 

rebellion,        .........       61 

change  of,  by  inauguration  of  civil  war,    .....     162 

examination  of  certain  constitutional  rights  under  the  5th,  6th, 
and  7th  amendments,  as  bearing  upon  the  subject  of 

military  government, 288,  289 

claims  of  rebels, 290.  291 

conceded  to  rebels, 292,  293 


S. 
SAULSBURY,  HON.   WILLARD,   SENATOR,    .        .         .     497,  500 

SAXTON,   GENERAL, 490 

SCOTT,   GENERAL. 

military  commissions  first  established  by  him  in  Mexico,  .     282 

SECESSION. 

right  of,  not  admitted  by  denying  applicability  of  doctrine  of 

forfeiture  to  the  case  of  the  rebel  States,         .         .         .     234 

SECRETARY   OF  WAR. 

acts  of,  are  deemed  in  law  to  be  the  acts  of  the  President,         .,    307 

authorities,  note, 307 

SEDGWICK,   HON.   MR.   (N.  Y.). 

amendment  proposed,  providing  for  the  enrolment  of  slaves 
in  the  military  service  of  the  United  States,  and  to  re 
ward  their  services  with  freedom, 395 

this  amendment  defeated, 395,  495,  496 

SELF-DEFENCE. 

the  nation  has  a  right  to  act  under  the  law  of  self-defence,  to 

preserve  its  own  existence,    ....         52,  186,  211 

none  of  the  war  powers  claimed  in  this  essay  for  the  govern 
ment    are    placed    solely  on    that   ground,  but   are    all 
granted  by  the  Constitution  in  express  terms  or  by  ne 
cessary  implication,  Preface,  page  .         .         .         .  v,  vi. 
SEQUESTRATION   COMMISSION. 

order  of  General  Butler  establishing,  at  New  Orleans,       .     285,  287 


INDEX.  675 

SLAVEHOLDERS. 

their  claim  to  indemnity  for  slaves  used  for  military  purposes,         23 
how  affected  by  naturalization  and  military  laws,      ...       24 
slaves  may  be  appropriated,  as  private  property,  to  public  use, 

for  war  purposes,  .......       28 

their  probable  policy  in  order  to  secure   the   continuance  of 

slavery, 231 

their  temper  towards  the  government,  .....     230 

compensation  to,  for  slaves  enlisted  in  the  service  of  the  United 

States,  policy  of  the  government  in  relation  to,  note,      .     405 
statute  relating  to,  .         .         .         .         .         .         .         .         .26 

SLAVERY. 

resolution  of  Congress,  1861,  denying  the  right  of  the  Federal 
government  or  people,  &c.,  to  legislate  upon  or  inter 
fere  with  slavery, 132,  393 

amendment  of  the  Constitution  proposed  by  Congress  in  1861, 
to  put  it  forever  out  of  the  power  of  the  country  to  so 
amend  the  Constitution  as  to  prohibit  slavery,  .  393,  394 

its  unexpected  growth, 2 

the  "  privileged  class/' 2 

abolished  by  European  governments,         .....         3 

in  1862  not  slavery  in  1788, 4 

must  be  destroyed,  otherwise  there  can  be  no  peace,         .         .         5 
are  slaveholders  arbiters  of  peace  and  war  ?       ....         5 

though  hated,  why  tolerated,     .......         6 

recognition  of,  not  inconsistent  with  the  perpetuity  of  the  re 
public,  ..........         7 

considered  as  belonging  to  the  domestic  affairs  of  States  ;  can 

government  interfere  with  it  ?         .....     131 

constitutional  rights  over,  not  affected  by  party  platforms,     129,  131 

as  one  of  our  domestic  institutions, 132 

what  they  are,  and  when  they  cease  to  be  so  (Preface,  p.  v.),    .     130 
may  be  interfered  with  by  Congress,  for  its  protection,     .         .     133 
Congress  may  interfere  against  it,     .         .         .         .         .     133,  134 

may  be  interfered  with  by  operation  of  militia  laws,  .         .134 

by  laws  regulating  commerce  between  the  States,      .         .      Io4 
by  the  power  to  make  treaties,  .         .         .         .         .         .loo 

by  the  power  to  suppress  insurrection,      .         .         .         .137 

right  to  deal  with  it  not  to  be  sought  in  party  platforms,       138,   139 
may  be  interfered  with  or  abolished,          .         .         .         .132,  393 

may  be  interfered  with  (so  far  as  taking  away  slaves  may  be 
said  to  interfere  with  it)  under  the  power  to  appropriate 
private  property  to  public  use,  as  shown  in  Chapter  I., 
pages 17,  18,  19,  20 


676  INDEX. 

SLAVERY  —  continued. 

also  by  the  exercise  of  the  war  powers  of  Congress,  as  shown 

in  Chapter  II.,  page        .......       34 

also  by  the  war  power  of  the  President,  as  shown  in  Chapter 

III.,  page 66 

also  by  the  power  to   punish  treason,  as  shown  in  Chapter  V., 

page 93 

also  by  the  power  to  punish  rebels,  as  shown  in  Chapter  VII.,  page  115 
distinction  in  law  between  emancipating  or  confiscating  slaves, 

and  abolishing  the  laws  which  sustain  slavery,  Preface,  page        iii 

legal  effect  of  confiscation  or  emancipation  acts  of  Congress, 

and  the  President's  proclamation  of  September  22, 1862  ; 

showing  that  these  do  not  attempt  to  abolish  slavery  as 

an  institution  in  the  States,  but  act  upon  persons  held  as 

slaves,  Preface, .  v,  vii 

legal  distinction  between  the  right  to  abolish  slavery  as  an  in 
stitution  and  the  right  to  alter  State  laws  relating  to 
slavery,  Preface,    .         .         .         .         .         .         .  vi,  vii,  viii 

may  be  abolished  by  Congress  (Preface,  iv.,  viii.),  .  .  28,  30 
should  be  abolished,  (Preface,  vii,  viii.),  ...  5,  135,  136 
how  our  enemies  will  contrive  to  restore  it,  ....  231 

their  plea  for  it, 232 

should  be  terminated  by  the  Constitutions  of  Southern  States, 

before  reconstruction  ought  to  be  allowed,      .         .         .     348 
reasons  for  calling  attention  to  all  the  modes  by  which  slavery 

could  be  lawfully  destroyed  (Preface,  v.,  vi.),  .         .     39o 

the  constitutional  amendment  proposed  in  1861,  to  perpetuate 
slavery,  and  to  deprive  Congress  of  all  power  over  it  in 

the  States, 393 

bill  of  Mr.  Trumbull,  proposed  July  20,  1861 394 

Mr.  Bingham's  amendment,      ....... 

statute  of  August  6,  1861,  ch.  60  (confiscation  act),          .         .     394 
Mr.  Eliot's  bill  of  December  2,  1861,  lost,        ....     394 

Mr.  TrumbulPs  bill  of  December  5,  1861,  to  free  rebels'  slaves,    394 
Mr.  Merrill's  bill  of  December  11,  1861,  to  free  slaves  of  per 
sons  opposed  to  the  government, 394 

Mr.  Eliot's  confiscation  bill,  freeing  slaves,  ....  395 
Mr.  Sedgwick's  amendment  to  free  and  arm  slaves,  rejected,  .  395 
confiscation  act  of  July  17,  1862,  freeirrg  certain  slaves  who 

were  declared  captives  of  war,        .....     395 
Mr.  Wilson's  bill  (approved  April  16,  1862)  to   free  slaves  in 

the  District  of  Columbia, 395 

Mr.  Wilson's  (of  Iowa)  bill,  December  23,  1861  (approved 
March  13,  1862),  forbidding  army  officers,  &c.,  to  return 
fugitive  slaves, 395 


INDEX.  677 

SLAVERY  —  continued. 

President  Lincoln's  recommendation  of  remuneration  for  slaves 

freed, 300 

Mr.  Conkling's  bill,  March  10,  1862,  to  carry  this  purpose  into 

effect, 396 

Mr.  Arnold's  (of  Illinois)  bill  to  prohibit  slavery  in  Territories, 

March  24, 1862, 396 

Mr.  Grimes's  bill,  April  29,  1862,  for  the  schooling  of  colored 

persons,  and  their  education  in  the  District  of  Columbia,  396 

Mr.  Simmer's  bill  (June  12,  1862)  to  carry  our  treaty  with 

England  into  effect  to  suppress  the  slave  trade,  .  .  396 

Mr.  Lovejoy's  (of  Illinois)  bill  of  June  23, 1862,  for  inaugurating 

a  public  school  system  in  the  District  of  Columbia,  .  396 

Mr.  Foster's  bill,  July  8,  1862,  authorizing  the  President  to 
make  provision  for  persons  of  color  seized  and  deliv 
ered  from  on  board  slave  ships,  .....  397 

bills  of  Mr.  Wilson  of  Massachusetts,  Mr.  Grimes,  and  Mr. 
Sumner,  to  sweep  away  the  remains  of  slavery  in  the 
District  of  Columbia,  and  protecting  the  rights  of  col 
ored  persons  in  the  District,  ......  397 

Mr.  Wilson  (of  Massachusetts),  bill  of,  July  8,  1862,  to  amend 
the  act  for  calling  forth  the  militia  of  the  United  States, 
and  authorizing  the  introduction  of  colored  troops  into 
the  service  as  soldiers  (act  July  17,  1862,  ch.  201),  .  397 

debates  on  this  act,  ........     397 

Mr.  Grimes's  and  Mr.  King's  amendments,      ....     397 

see  note  No.  12  to  43d  edition, 478 

December,  1863,  Mr.  Eliot's  Freedman's  Bureau  bill,  corre 
spondence  upon,  note,  .......  398 

Mr.  Wilson's  bill  of  February  17,  1863,  to  incorporate  an  in 
stitution  in  the  District  for  education  of  colored  youth,  398 

act  June  25,  1864,  making  it  the  duty  of  the  school  commission 
ers  of  the  District  to  provide  school-houses,  &c..  for  col 
ored  children, 398 

Mr.  Ashley  (December  14,  1863)  and  Mr.  Wilson  (of  Iowa)  pro 
pose  the  13th  amendment  of  Lthe  Constitution,  abolish 
ing  slavery  forever,  .......  398 

the  14th  amendment  of  the  Constitution,  giving  citizenship  and 

equal  rights  to  colored  persons  and  former  slaves,  .  399 

the  15th  amendment  of  the  Constitution,  ....     400 

the  acts  of  President  Lincoln  as  to  slaves,         .         .         .      400-404 

letter  to  Hon.  G.  W.  Julian,  in  anticipation  that  the  Constitu 
tion  would  be  amended  so  as  to  abolish  slavery,  supposed 
effect  of  this  amendment  on  lands  in  the  south,  &c.,  notes 
to  43d  edition, 469 


678  INDEX. 

SLAVES. 

as  private  property,  may  be  appropriated  to  public  use,       .         .     20 
this  power  used  by  Confederate  Congress,  by  act  1864,  see 
note  to  page  ........       26 

subject  to  same  liability  as  other  property,         ....       28 

must  be  liberated  to  save  the  Union,  (Preface,  viii)   .         .         5,  135 
may  be  emancipated  by  the  war  power  of  the  President,   .         .       66 
ought  to  be  emancipated,  Preface,  p.  vii.  and  viii.,  and  pp.      133-137 
is  liberation  of  enemy's  slaves  a  belligerent  right  ?    .         .         .68 
may  be  liberated  by  law  of  nations,  .         .         ...         .69 

the  right  of  liberation  of,  confirmed  by  usage  and  authority,      .       74 
usage  of  United  States  government,          .....       74 

pledge  of  the  President  to  free  slaves  ought  to  be  redeemed,      .     247 
consequences  of  failure,       .......     247 

compensation  for  slaves  enlisted  in  the  military  service  of  the 

United  States, 21,  22,  405 

policy  of  Congress  in  relation  to, 405 

statutes  relating  to, 405 

of  loyal  masters  in  loyal  States,  were  not  enrolled  prior  to  1864 ; 

reasons  for  this  course  stated,         .         .         .         .         .371 
not  held  to  be  citizens  of  the  United  States  prior  to  1864,         .     410 
see  "  Slavery,"  "  Slaveholders,"  note  to  43  edition,  on  "  Slavery,"    405 
history  of  their  introduction  into  the  volunteer  service  of  the 
United   States,  and  the  equalization  of  their  pay  with 

that  of  other  soldiers, 478,  494 

SOLICITOR   OF   THE   WAR  DEPARTMENT. 

some  opinions  of,  relating  to  subjects  discussed  in  these  essays. 
No.  36.    Harsberg  and  Steifel,  claimants  of  400  bbls.  flour,  cap 
tured  by  our  troops  at  Fredericksburg,  .         .         .     358 
No.  55.     J.  W.  Seaver,  petitioner  for  an  order  allowing  him  to 
collect  a  debt  from  a  registered  enemy  of  the  United 

States,  at  New  Orleans. 358 

No.  88.       A.  Kunahan,   a  British    subject,  claimant,   through 

Lord  Lyons,  of  property  seized  by  General  Butler,         .     359 
No.  95.     W.  &  C.  K.  Herrick,  claimants  against  the  confiscated 

property  of  Bloomfield  &  Steele,  of  New  Orleans,  .     359 

No.  117.     H.  H.  Thompson,  claim  for  proceeds  of  corn  con 
demned  as  lawful  prize,  ......     360 

No.  195.     Wylie  &  Co.,  British  subjects,  request  permission, 
through  Lord  Lyons,  to  remove  from  Pensacola  certain 
lumber  which  they  bought  before  the  war  broke  out  or 
blockade  was  established,       ......     362 

No.  332.  Mrs.  Bass,  claimant  for  property  taken  by  the  Unit 
ed  States  army  from  her  plantation,  in  Mississippi,  for 
the  public  service,  .......  363 


INDEX.  679 

SOLICITOR   OF   THE   WAR  DEPARTMENT  —  continued. 

No.  357.  Captain  Sherwin  claims,  through  Lord  Lyons,  indem 
nity  for  arrest  and  imprisonment  by  the  military  forces 
of  the  United  States, 365 

No.  361.    Indemnity  claimed  for  French  subjects,  by  the  French 
minister,  from  whom  the  United  States  troops  have  for 
cibly  taken  their  arms, 364 

No.  362.  Theodore  Moreau,  a  French  subject,  claims,  through 
the  French  minister,  indemnity  against  liability  to  pay 
rent  to  the  rebel  Slidell,  and  also  to  the  United  States,  .  368 

No.  369.     Simon  Queyrouse,  a  French  claimant  for  captured 

cotton,  .         .         .         .         .         .         .         .         .         .371 

No.  410.  Draft  of  letter  in  answer  to  a  resolution  of  the  Sen 
ate  inquiring  of  the  Secretary  of  War  whether  slaves  in 
Maryland,  Delaware,  West  Virginia,  Kentucky,  and  Mis 
souri  had  not  be.en  enrolled  ;  and  if  not,  why  ?  .  .371 

No.  433.     How  does   service  in  the  Federal  or  in  the  rebel 

army  affect  the  plea  of  alienage, 374 

No.  448.     Deserters  from  a  French  corvette,  who  enlisted  as 
substitutes  into  the  service  of  the  United  States,  claimed 
by  the  French  consul  as  deserters  from  the  French  ser 
vice,      374 

No.  467.  Opinion  as  to  the  proper  course  to  be  taken  in  be 
half  of  certain  soldiers  who  had  shot  a  deserter,  .  .  375 

No.  487.     W.  W.  Cones's  claim  for  cotton  seized  and  sold  at 

Memphis,       .........     378 

No.  518.     Letter  in  relation  to  a  draft  of  a  bill  for  adjustment 

of  claims  of  aliens,          .......     379 

No.  528.     Secretary  of  the  Navy,  opinion  requested  by,  as  to 

liability  of  navy  agents  to  courts  martial,        .         .         .     380 

No.  531.  Opinion  requested  by  United  States  attorney  at  Bal 
timore,  on  the  question  whether  the  government  has  the 
right  to  condemn,  as  enemy  property,  money,  when  taken 
from  the  person  of  an  enemy  on  land,  in  our  own  terri 
tory  ?  381 

No.  532.     As  to  payment  of  creditors'  claims  out  of  proceeds 

of  confiscated  claims, 382 

No.  535.  James  Shepard,  claimant  for  restoration  of  cotton, 
&c.,  seized  on  his  plantations  at  Pine  Bluff,  Ark.,  by  our 
military  forces,  as  abandoned  property,  under  the  cir 
cumstances  stated,  ....•••  382 

No.  707,  Timothy  Dowling,  through  Lord  Lyons,  claims  dam 
age,  as  a  British  subject,  for -injury  to  his  property  in 
Vicksburg,  by  our  forces,  ......  383 


680  INDEX. 

SOLICITOR  OF   THE  WAR  DEPARTMENT  —  continued. 

No.  713.  Lord  Lyons's  objection  to  an  oath  required  of  British 
and  other  subjects  of  foreign  powers,  before  allowing 
them  to  engage  in  commerce  at  New  Orleans,  .  .  384 

No.  714.  Romain  Dupre,  a  French  subject,  claimant  for  cot 
ton  seized  on  his  plantation  at  Plaquemine,  La.,  by  our 
forces,  .  .  .  .  .  .  .  .  .  .  384 

No.  723.  Objections  of  the  British  minister  to  the  order  of 
General  Banks,  at  New  Orleans,  requiring  gold  of  cer 
tain  foreigners  to  be  deposited  under  supervision  of  mili 
tary  authorities,  .  .....  385 

No.  730.  John  H.  Sothoron's  loyal  creditors  claim  a  lien  on 
his  property  (a  rebel  enemy),  as  prior  to  the  claims  of 
the  United  States,  • 386 

No.  731.  The  French  minister  claims  indemnity  for  the  cot 
ton  of  Antoine  Caire,  seized  at  New  Orleans  by  our 
forces, 387 

No.  935.  George  Cameron,  a  British  subject,  claims  to  have 
been  neutral,  though  captured  in  arms  with  rebel  forces 
at  Petersburg ;  now  requests  to  be  discharged  from  im 
prisonment  as  a  captive  of  war,  .....  388 

No.  951.  Cowen  &  Dickinson,  claimants  for  cotton  of  their 
clients,  taken  by  the  United  States  forces,  at  Knoxville, 
for  use  on  the  fortifications,  during  the  siege  at  that 
place, 389 

No.  1437.     Tracy  Irwin  &  Co.,  see  Records  of  W.  D. 

No.  1440.     Benson,  claimant,  see  Records  of  W.  D. 

letter  to  Hon.  T.  D.  Eliot,  on  the  Freedman's  Bureau,     .         .     464 

letter  to  Hon.  E.  B.  Washburn,  on  claims  against  the  United 

States, 467 

letter  to  Hon.  G.  W.  Julian,  on  the  best  policy  to  be  pursued 

by  the  government  in  relation  to  confiscated  lands,  &c.,     470 
SOUTH   CAROLINA. 

admitted  to  representation,  &c.,        ......     445 

SOUTH  CAROLINA  COLORED  VOLUNTEERS. 

law  authorizing  their  payment  on  equal  terms  with  white  sol 
diers,  492,  493 

SPIES. 

jurisdiction  of  military  commissions  over,  ....     283 

SPRAGUE,   MR.   JUSTICE. 

see  note  to  43d  edition,    .  ....     451,  452 

STANTON,    HON.    EDWIN    M.    (late  Secretary  of  War). 

see  Appendix,  ..........     588 


INDEX.  681 

STANTON,   HON.   EDWIN   M.  —  continued. 

his  letter  of  instructions  to  General  Saxton,  authorizing  him  to 
recruit  colored  volunteers,  to  be  paid  on  equal  terms 
with  white  soldiers,  .......  492 

found  he  had  exceeded  his  power, 492 

his  letter  held  as  a  pledge  of  the  administration,       .         .         .     492 

that  pledge  honorably  redeemed. 493 

ats.  State  of  Georgia, 445,  588 

STATE  IN   THE   UNION. 

what  is,  see  Texas  v.  White, 598 

STATE  OF   GEORGIA  ats.   CHEROKEE  NATION. 

(6  Wallace,  73), 529 

STATE    RIGHTS. 

in  the  jury  room, 126 

to  be  regained  by  public  enemies  only  by  consent  of  the  con 
queror,  244 

the  mode  of  regaining  them  which  the  rebels  will  probably 

adopt 231 

how,  if  conceded,  they  may  be  used  by  the  enemy,    .         .         .     232 

ST.    DOMINGO, 70,  73 

STORY,  MR.   JUSTICE,  35,  88 

SUBJECTS. 

rebels  may  be  treated  as, 44 

SUMNER,   HON.   CHARLES,   SENATOR. 

his  opinion  that  the   laws  of  Congress,  in  1862,  required  the 
State  militia  in  the  service  of  the  United  States  to  be 
white  men  only,     ........     504 

bill  to  carry  into  effect  the  treaty  between  the  United  States  and 

Great  Britain,  to  suppress  slave  trade,  ....     396 

bill  to  abolish  vestiges  of  slavery  in  the  District  of  Columbia,  .     397 
bill  to  amend  the  Constitution,  proposed, 
SUPREME  COURT   OF   THE   UNITED    STATES. 

decisions  of,  on  constitutional  question,    ....     138,  139 

in  the  Prize  Cases, •     141,  238 

recognition  of  civil  territorial  war  by,  .....  238 
confirmation  by,  of  doctrines  of  the  war  powers,  .  .  238,  240 
bound  to  follow  decision  of  political  department  on  question 

of  war  or  peace, 304,  342,  343 

has  followed  the  decisions  of  the  political  departments  of  the 

government  in  relation  to  the  legal  status  of  rebels,  .  304 
Chase,  Chief  Justice,  remarks  of,  on  powers  of,  at  Raleigh,  .  597 
the  decisions  of,  and  opinions  of  the  judges  of,  even  on  points 

not  judicially  decided,  entitled  to  great  respect,     .     238,  239 

86 


682  INDEX. 

SUPREME   COURT   OF  THE   UNITED   STATES  —  continued. 

opinions  of,  on  constitutional  questions,    .....     139 

jurisdiction  of,  to  hear  by  appeals  cases  brought  from  military 

courts,  if  it  ever  existed,  has  been  taken  away,  see  act  March 
2,  1867,  ch.  155. 

see  note  on  "  Military  Government,"         .....     427 

appeals  to,  see  "  Civil  Rights." 

cases    decided  in,  relating  to  the   subjects  herein  treated  of, 

extracts  from  reports  of :  — 

Cherokee  Nation  v.  the  State  of  Georgia  (5  Peters,  1),  .  529 
Rhode  Island  v.  Massachusetts  (12  Peters,  657),  .  .  530 

Fleming  v.  Page  (9  How.  614), 512 

Cross  v.  Harrison  (16  How.  189), 516 

Jecker  v.  Montgomery  (18  How.  112),      ....     519 

Dynes  v.  Hoover  (20  How.  79), 520 

Leitensdorfer  v.  Webb  (20  How.  177),      ....     522 

cases  decided  since  the  first  publication  of  this  work  :  — 

the  Prize  Cases  (1  Black.),  .  .  .  141-156,  238-243 
Ex  parte  Vallandigham  (1  Black.), 524 

cases  decided  since  the   publication  of  the   10th  Boston  edi 
tion  :  — 

United  States  v.  Morens  (1  Wallace,  400),  .  .  .531 
United  States  v.  Circassian  (2  Wallace,  150),  .  .  .531 

The  Venice  (2  Wallace,  274), 532 

Mrs.  Alexander's  Cotton  (2  Wallace,  417),  .  .  .532 
Ex  parte  Milligan  (4  Wallace,  106),  ....  536 
Cummings  v.  Missouri  (4  Wallace,  316),  ....  556 

Ex  parte  Garland  (4  Wallace,  374), 565 

Mississippi  v.  Andrew  Johnson  (4  Wallace,  497),       .         .     579 

The  Peterhoff  (5  Wallace,  60), 582 

The  Gray  Jacket  (5  Wallace,  369), 582 

The  William  Bagaley  (5  Wallace,  402),  .  .  .  .583 
Mauran  v.  Insurance  Co.  (6  Wallace,  114),  .  .  .587 

Georgia  v.  Stanton  (6  Wallace,  63), 588 

The  Grapeshot  (7  Wallace,  563), 598 

The  Grapeshot  (9  Wallace,  131), 601 

United  States  v.  Anderson  (9  Wallace,  64),  .         .     603 

United  States  v.  Keehler  (9  Wallace,  86),          .         .         .607 

Hickman  v.  Jones  (9  Wallace,  196),  ....     608 

,     Bigelow  v.  Forrest  (9  Wallace,  339),          ....     610 

see  also,  Coppell  v.  Hall,  7  Wallace,  542. 

McKee  v.  United  States,  8  Wallace,  168. 
the  Ouachita  Cotton,  case  of,  6  Wallace,  521. 
United  States  v.  Lane,  8  Wallace,  181. 


INDEX.  683 

SUPREME   COURT   OF   THE   UNITED    STAVES  — continued. 
Union  Insurance  Co.  v.  the  United  States,  6  Wallace,  765. 
Armstrong's  Foundry,  6  Wallace,  769. 
Morris's  Cotton,  case  of,  8  Wallace,  507. 

see  also  correspondence  between  Chief  Justice  Chase  and  Pres 
ident  Johnson,       ........     595 

remarks  of  Chief  Justice  Chase,  at  Raleigh,  N.  C.,    .         .         .     596 
see  also  Kees  v.  Tod  (decided  in  Ohio),    ....      216-225 

remarks  on  the  case  Ex  parte  Milligan,    .....     460 

SWAYNE,  MR.   JUSTICE. 

opinion  of,  in  Coolidge  y.  Guthrie,    .....      591-608 
opinions    delivered  by,  in    cases   in   the   Supreme    Court,  Ap 
pendix,  512,  608,  610 

T. 

TANEY,   CHIEF   JUSTICE, 67,136,214,327 

TAYLOR,  PRESIDENT, 75,  76 

TEN  EYCK,    SENATOR, 498 

TENNESSEE,    STATE   OF.  * 

restored  to  the  Union,      ......                  .  445 

TEXAS,    STATE   OF. 

admission  to  representation,  &c.,                                            .  445 

v.  White  (7  Wallace,  702), 598 

TOD    ats.    KEES, 216 

TOUS  SAINT  L'OUVERTURE, 72 

TRADING   OR   COMMERCE   WITH  THE  ENEMY. 

unlawful  by  the  laws  of  war,    .......  149 

forbidden  by  statute, 297 

and  by  proclamation  of  President  Lincoln,        ....  298 

example  of,      ..........  371 

treasury  permits  for,  limited  to  persons  not  transferees,   .         .  378 

see  Ouachita  Cotton,  case  of,  6  Wallace,  521. 

see  McKee  v.  United  States,  9  Wallace,  166. 

oaths  required  by  the  United  States  from  aliens  engaged  in, 

Lord  Lyons's  objections  to,    .         .         .         .         •         .  384 

order  of  General  Banks  relative  to  goods  imported  into  rebel 
districts  by  aliens,  Lord  Lyons's  objections  to,  consid 
ered,  ......••••  385 

see  the  Peterhoff, 582 

the  Gray  Jacket,       .....••••  582 

the  William  Bagaley, 583 


684 


INDEX. 


TRAVELLERS. 

or  aliens,  having  no  domicile  in  the  United  States,  .         .         .     345 

their  rights  and  liabilities, 345 

their  claims  if  prevented  from  withdrawing,      ....     345 

exceptions  to  right  of  withdrawal, 34$ 

see  the  William  Bagaley, 583 

TREASON. 

what  it  is, 93>  95 

right  of  Congress  to  declare  by  statute  the  punishment  of,  and 

the  constitutional  limitations  of  that  right,  .  .  93?  96 
constructive,  ancient  English  doctrine  of,  ...  93  96 
power  of  Congress  to  define  and  punish,  limited,  ...  96 

attainder  and  ex  post  facto  laws, 97 

defined  by  statute, 9$ 

Congress  have  unlimited  power  to  declare  the  punishment  of,  .       99 
consequences  of  attainder,  .......  100 

corruption  of  blood,          .....  101 

savage  cruelty  of  English  law, 101 

forfeitures, 102 

characteristics  of  attainders  of, 105 

technical  language,  how  construed,  .  * 106 

true  meaning  of  the  Constitution,  Art.  III.,  sec.  3,  cl.  2,  .  .  10S 
if  Congress  can  impose  fines,  why  not  forfeitures  for?  .  .  109 
forfeitures  for,  not  limited  to  life  estates, .  .  .  .  .110 

statutes  against,  how  administered, 112 

confiscation  act  of  1862  not  a  bill  of  attainder,  and  not  an  ex 

post  facto  law, 116 

the  right  of  Congress  to   declare   the  punishment  of  crimes 

against  the  United  States,  other  than  treason,        .         .117 
practical  operation  of  laws   against  treason  will  render  them 

substantially  inoperative, 126 

reasons  for  this  opinion, 126,  127 

punishment  of,  will  be  defeated  by  the  present  state  of  the 

laws, ....     126 

the  rights  of  those  accused  of, 126 

will  traitors  indict  and  convict  each  other  P  .  .  .  .127 
how  juries  for  trial  of,  are  selected  ;  the  effect,  .  .  .127 

State  rights  in  the  jury  room, 12S 

laws  against,  are  effective  only  when  they  require  no  traitor  to 

administer  them,    .         .         .         .         .         .         .         .     12d 

traitors  will  be  protected  by  statutes  of  limitation,    .         .         .     130 
TREATIES. 

modifying  the  law  of  nations, 340-352 

treaty  with  France,  .         .  332 


INDEX.  685 

TRUCE,  FLAGS   OF. 

recognized  by  our  army  and  our  government  as  a  concession  of 

one  of  the  rights  of  belligerents  to  the  insurgents,          .     291 
TRUMBULL,   HON.  LYMAN   (Illinois). 

see  note  on  "  Slavery,"  page 393 

bill  to  confiscate  slaves  used  for  insurrectionary  purposes,        .     394 
to  free    slaves  of  rebels  who  took  up   arms  against  the 

United  States, 394 

report  of  amendment  to   the  Constitution  abolishing  slavery 

(Art.  13), 398 

civil  rights  bill,         ......•••     399 

TYLER,   PRESIDENT, 75 


u. 

UNION,  THE. 

its  perpetuity  secured  by  a  proper  policy  in  relation  to  public 

lands, 476 

UNITED   STATES. 

v.  Moreno  (1  Wallace,  400), 531 

v.  Anderson  (9  Wallace,  64), 603 

v.  Keehler  (9  Wallace,  86),  .                                                      •  607 

USE,   PUBLIC. 

of  private, property  under  the  provisions  of  the  Constitution, 

what  it  is,     .         .         .         •         •         •         •         •         .17 
indemnity  required  for  such  use,       .         .         .         •         •         .17 

slaves  may  be  appropriated  to, 18 

see  "  Indemnity,"  "  Slaves." 

note  on  "  Compensation  to  Slave  Masters,"       ....     405 

V. 

VALLANDIGHAM,   Ex  parte, 524 

VAN   BUREN,   PRESIDENT, 

VENICE,  THE • 532 

VIRGINIA,   STATE   OF. 

admitted  to  representation,  &c., 

act  relating  to, 445'  446 

VOLUNTEER  ARMY. 

act  of  July  22,  1861,  calling  out,  note, 478 

July  25,  1861,  note, 

July  29,  1861,  note,  . 

July  31,  1861,  note, 479 


686  INDEX. 

VOLUNTEER   ARMY  —  continued. 

colored  men  excluded  from,  by  law,  prior  to  1862,  note,    .      479-481 
refused  to  be  received  as,  by  Adjutant  Generals,        .         .     481 
expelled   from   the    service  by  court  martial,  by  General 

McClellan,          ........     480 

acts  of  July  17,  1862,  ch.  195,  and  ch.  205,        .         .         .      481-505 

their  provisions  stated, 481-505 

the  true  construction  of  these  acts,  .....      481-505 
use  made  by  President  Lincoln  of  the  power  conferred  on  him 

by  these  two  acts, 486,  487,  490 

debates  in  Congress  upon  act  of  July  17,  1862,  ch.  205,  upon 

the  subject  of  arming  negroes,        ....     494,  511 

enrolment  act  of  1863,  for  raising, 508 

amended  enrolment  act  of  1864,  for  raising,     ....     509 
equalization  of  pay  of  white  and  colored  soldiers,      .         .     510,511 

w. 

WAR. 

distinction  between  the  objects  and  the  means  of,     .         .         7,  261 

on  what  ground  it  is  justifiable, 186 

divided  into  classes,  civil  and  foreign,       .....  44 

offensive  and  defensive,     .......  44 

personal,  territorial,  or  public,  ....      235,  236,  237 

consequences  of,       .........  236 

how  levied,  as  declared  in  the  Constitution,      ....  43 

is  levied  by  the  commission  of  "  treason,"        ....  43 

if  levied  against  the  government  by  traitors,  as  it  takes  two 

parties  to  make  war,  the  government  must  be  at  war,    .  43 
is  waged  by  rebels  by  acts  stated ;  are  they  at  war  against  the 
government,   and    is    the    government   which    opposes 

them  not  at  war  with  them  ? 44 

civil,  between  St.  Domingo  and  France, 44 

between  Portugal  and  her  subjects, 44 

recognized  by  the  government  by  its  treatment  of  the  insur 
gents,  blockade,  &c., 45 

exists  in  fact,  in  the  constitutional  sense  of  the  term,  whenever 

armed  rebellion  is  being  suppressed  by  military  force,    .  42 
declaration  of,  by  the  government,  not  necessary  in  order  to 

give  the  government  full  belligerent  rights,    ...  38 

so  decided  by  the  Supreme  Court  of  the  United  States  (1863),  240 
how  long  it  may  be  justly  continued,         ....     167,261 

renders   the   constitutional   guarantees   of  certain   civil  rights 

sometimes  inapplicable,          ......  49 

civil,  changes  effected  in  our  rights  by,     .         .         .         .       59,  162 

objects  and  necessities  of,  show  what  means  are  lawful,    .         .  166 


INDEX.  687 

WAR  —  continued. 

freedom  of  speech  and  of  the  press,  trial  by  jury,  &c.        .         .  60 

effect  of,  on  courts  of  law, 170,171 

makes  acts  criminal  which  might  not  be  so  in  time  of  peace,     .  188 
renders  certain  persons  liable  to  military  as  well  as  to  civil  tri 
bunals,           188 

necessities  of, 166,  167,  196 

of  arms,  and  war  of  ideas,         .         ......  229 

State  rights  in  time  of, 234 

character  of,  changed  by  subsequent  events,     .                           .  235 

civil,  territorial,  consequences  of,     ......  236 

when    and  by  what  course  of  proceedings  the  rebellion  was 

changed  into  civil  war, .237 

laws  of,  are  to  settle  the  rights  of  rebels, 242 

the  deadliest  struggle  of, 230 

when  it  was  a  personal  war,  and  when  the   progress  of  events 
changed  the  attitude  of  government  towards  rebels  and 

loyal  men  in  rebel  States, 235 

distinction  between  "  personal "  and  "  territorial,"     .         .     235,  236 

civil,  confers  on  the  government  all  the  rights  of  foreign  war,  .  239 

converts  all  citizens  of  hostile  States  into  public  enemies,          .  240 
confers  on  the  United   States,  since    1861,  all  the  rights  of  war 

against  the  inhabitants  of  rebel  States,  ....  240 

the  laws  of,  must  settle  the  rights  of  rebels  as  persons,  as  citi 
zens  of  the  United  States,  and  as  subjects,     .         .         .242 
until   recognized   or    declared  by  Congress,  innocent  persons 
cannot  be  punished,  or  their  property  confiscated ;  die- 

turn,      ....                           ....  242 

recognized  by  Congress  by  act  July  13,  1861,  ....  242 

questions  of  war  or  peace  to  be  decided  by  Congress,       .         .  243 
decisions  of  the  political  departments  on  questions  of  war  or 

peace  must  be  followed  by  Supreme  Court,    .         .         •  243 

effects  of, 244 

supposed  effect  of  President  Johnson's  proclamation  of  peace, 
April,    1866,  and  August,  1866  ;    Chase,  Chief  Justice, 

in  his  remarks  at  Raleigh,  N.  C.,  1867,  Appendix,          .  597 

but  see 243 

see  "  Public  Enemies." 

certain  general  rules  of  the  law  of,    .         .         .         •     334,  335,  336 

WAR  CLAIMS. 

preface  to, 329>  3?° 

see  title,  "  Claims  against  the  United  States,"  .         .         .      331-3o7 

WAR  DEPARTMENT. 

army  regulations  of,  have  the  force  and  effect  of  law,  note,        .     479 


688  INDEX. 

WAR  DEPARTMENT  —  continued. 

opinion  of  Attorney  General  Gushing  on,  .  -:  .  .  .  479 
decision  of  Supreme  Court  to  the  same  effect,  ....  479 
army  regulation  of  August  10,  1861,  No.  929,  excludes  colored 

persons  and  slaves  from  army,        ....     479,  480 
acts  of  Secretary  of  War  are  in  law  the  acts  of  the  President,  .     307 

authorities,  note  to, 307 

WAR  POWERS. 

preface  to  essay  on, iii  to  viii 

preface  to  43d  edition,      .         .         .         .         .         .         .        ix  to  xi 

of  seizure  of  property,  whether  superseded  by  the  civil  power 
of  Congress  to  appropriate  private  property  to  public 

use,  26 

references  to  the  Constitution  containing  the  specific  war  powers 

of  Congress,  .........       25 

of  Congress  to  make  rules  concerning  captures  on  land  and  water,  25 
of  Congress  stated  in  introduction  to  Chapter  II.,  .  .  33 

purpose  of, 34 

rules  of  interpretation  of, 34 

limitation  of  all  powers  under  the  Constitution,  Preface,  page  .  v 
has  government  full  war  powers  against  rebels  ?  .  .40 

of  the  President  to  emancipate  enemy's  slaves,          ...       66 

reason  for  its  existence, 66 

of  the  President  to  be  used  at  his  sole  discretion,     ...       67 
not   inconsistent  with   those    of  Congress  to  emancipate 

slaves,        .........       68 

in  general, 82,   163 

limitations  of,  Preface,  p.  v,  .  .  60,  82,  167,  168,  187,  200,  314 
of  more  effective  character  required  by  the  change  of  attitude  • 

of  the  government  in  the  progress  of  events,  .         .     235 

in  territorial,  as  distinguished  from  personal  war,      .         .         .     236 
recognized  in  decisions  of  Supreme  Court,        .         .       140-156,  240 
under  the  Constitution,  which  have  been  used  by  the  govern 
ment    and    established   by  the    courts  during  the  war, 

note,  No.  1,  43d  edition, 390 

of  the  President    to    call  into  service  the  military  and   naval 

forces, 390 

of  Congress  to  provide  for  raising,  &c., 390 

if  insurrection  be  suppressed  without  war,  the  status  of  the  in 
surgents,         390 

if  war  be  declared  or  recognized,  their  status,  293,  303,  306,  390,  391 
to  declare  or  restore  peace,  when,  where,  and  on  what  terms 
and  conditions  may  suit  the  will  and  pleasure   of  the 
political  departments  of  the  government,         .     242-244, 

265,  293,  296,  306,  324,  391,  392 


INDEX.  689 

WAR  POWERS  —  continued. 

to  restore  to  or  withhold  from  an  enemy  any  or  all  the  rights 

guaranteed  by  the  Constitution  to  loyal  citizens,    .      242-246 
and  on  whatever  conditions  Congress  may  prescribe,  242-246,  392 
is  conferred  on  the  political  department  to  decide  all  political 
questions    growing   out   of  the  war,  and  the  Supreme 
Court  is  bound  by  their  decisions,  ....     392 

among  these  political  questions  are  the  following  :  — 

when  civil  war  shall  be  declared  or  recognized,          .         .     392 
when  peace  shall  be  declared  or  recognized,       .         .         .     392 
on  what  terms  rebels  shall  be  restored  to  their  former  rela 
tions  to  the  government,     ......     392 

when  the  courts  shall  be  open  to  a  public  enemy,       .         .     392 

but  see  White  v.  Texas, 598 

when,  and  on  what  terms,  and  on  whom,  pardon  and  am 
nesty  shall  be  bestowed, 392 

see  Index,  "  Policy  of  the  Government." 

importance  of  the  knowledge  and  study  of,  see  Preface  to  43d 

edition,  pages ix-xi 

state  of  public  opinion  upon  at  the  time  when  this  essay 
was  first  published,  note  to  43d  edition,  on  "  Reconstruc 
tion,"  427 

to  suspend  habeas  corpus,  see  Index,  "  Habeas  Corpus." 

to  declare  martial  law,  see  Index,  "  Martial  Law." 

to  suspend  intercourse  with  the  enemy,  .         .       298,  299,  303 

see  Index,  "  Non-intercourse." 

to  suspend  many  rights  of  loyal  citizens  enjoyed  by  them  un 
der  ordinary  circumstances,  .....  51-53 
to  treat  insurgents  as  subjects  or  as  belligerents,      ...       44 
consequences  of  either  of  these  characters,         ...       45 
v         liability  to  punishment  by, — for  treason,  or  misprision  of,        .     117 
for  exciting  or  engaging  in  rebellion,  violating  blockades,  &c.,     117 
see  Index,  "  Blockade." 

civil  liability  of  insurgents  for  manslaughter,      .         .         .     124 
liability  to  civil  action  for  other  wrongs  done,    .         .     124,  125 
to  treat  insurgents  as  public  enemies,  see  Index,  "  Public  Ene 
mies." 

to  declare  non-intercourse  by  law,  see  Index,  "  Non-inter 
course." 

to  declare  and  maintain  blockade,  see  Index,  "  Blockade." 
to  capture  property  on  the  ocean,  see  Index,  "  Capture." 

or  destroy  it  on  land,  see  Index,  "  Capture." 
to  confiscate  it,  see  Index,  "  Confiscation." 

87 


690  INDEX. 

WAR  POWERS  —  continued. 

to  capture  and  free  enemy's  slaves,  see  Index,  "  Capture," 
"  Slavery,"  "  Slaves." 

to  seize  and  hold  their  lands,  and  use  them  during  the  war,  see 
"  Capture,"  "  Confiscation." 

to  subject  the  public  enemy  to  military  and  martial  law,  see 
Index,  "  Public  Enemy,"  "  Martial  Law." 

to  try  by  courts  martial  or  military  commissions,  see  Index, 
"  Military  Courts." 

to  capture,  wound,  or  slay  in  battle,  see  Index,  "  Public  Ene 
mies." 

to  erect  military  government  over  the  enemy,  see  Index,  "  Mil 
itary  Government." 

to  take  away  all  civil  or  political  rights  or  privileges  under  the 
Constitution,  see  Index,  "  Public  Enemy,"  '•  Policy  of 
the  Government." 

certain  of  them  as  claimed  in  this  work,  note,  .         .         .      390-392 

consequences  of  depriving  government  of,        ...         11,   12 

how  they  have  been  used,  see  notes  to  43d  edition ;  also,        390-392 

under  the  Constitution,  to  "  provide  for  the  common  defence 
and  general  welfare,"  is  not  relied  upon  in  this  essay  as 
conveying  to  Congress  a  distinct,  substantive  power, 
Preface  to  2d  edition,  page v 

the  views  of  the  framers  of  the  Constitution  on  this  subject, 

Preface  to  2d  edition,  page v 

distinction  as  to  the,  in  time  of  war  and  time  of  peace,  Preface 

to  2d  edition,  page    .......         .        vi 

application  of  this  distinction  to  the  question  of  slavery  in  the 

States,  5 

general  war  powers  of  the  President,        .         .         .         .         82,  83 

as  used  by  the  government  and  sanctioned  by  the  judiciary, 

390,  391,  392 

of  the  President  to  establish  provisional  courts  in  rebel  dis 
tricts  affirmed  by  the  Supreme  Court  in  the  Grapeshot 
(9  Wallace,  131),  Appendix,  ....  601-603 

WASHINGTON,  GENERAL, 69 

WATSON,    HON.    PETER   H.   (late  Assistant  Secretary  of  War). 

his  efforts  to  introduce  colored  troops  into  the  military  service,     492 

the  character  of  his  public  services, 492,  493 

WEBB    ats.   LEITENSDORFER  (20  How.  177),     ....     522 

WEBSTER,  DANIEL, 35 

WEST  VIRGINIA. 

admitted  as  a  State,  on  terms, 445 


INDEX.  691 

WHITE  ats.   STATE   OF   TEXAS  (7  Wallace,  702),     .        .        .598 
WILLIAM  BAGALEY. 

case  of  the  (5  Wallace,  402), 583 

WILKINSON,   SENATOR,      .        ..!....  505 
WILSON,  HON.   HENRY,   SENATOR. 

bill  to  release  slaves  in  the  District  of  Columbia,      .         .         .  395 
bill  to  amend  the  act  for  calling  forth  the  militia,  by  which  col 
ored  persons  were  first  introduced  into  the  military  ser 
vice  of  the  United  States  by  law,  giving  them  pay  and 

freedom,  see  note,          .......  397 

bill  to  remove  the  vestiges  of  slavery, 397 

bill  to  incorporate  an  educational  institute  for  colored  persons  in 

the  District  of  Columbia, 398 

bill  introduced  by, 505 

WILSON,  HON.   JAMES   F.  (of  Iowa). 

bill  to  create  an  additional  article  of  war,  to  prevent  officers,  &c,, 

in  the  army  from  returning  fugitive  slaves,    .         .         .  395 

bill  to  amend  the  Constitution, 398 

WITHDRAWAL. 

right  of,  of  travellers, 345 

of  non-domiciled  aliens,    .......  345 

how  the  right  of,  may  be  lost, 346 

right  of,  under  treaties  of  commerce,  &c.,        .         .         .         .  352 

neutral  aliens, 349 

exceptions,        .........  349 

see  Mrs.  Alexander's  Cotton,  .         .         .         .         .         .         .  532 

The  Venice, 532 

The  Peterhoff, 582 

The  Gray  Jacket,      ........  582 


ADDITIONAL   INDEX. 


ALIENS. 

draft  of  a  bill  to  authorize  the  adjustment  of  claims  of,  against 

the  United  States, 379 

ALLIES. 

of  our  public  enemies,  our  rights  against,          .         .         .         .167 
ARBITRARY   POWER. 

not  consistent  with  a  free  or  constitutional  government,  .         .     183 

distinguished  from  discretionary  power, 183 

B. 

BANKS,  N.  P.,  GENERAL. 

oath  required  by  him  of  aliens,         ......     384 

military  orders  of,  respecting  gold, 385 

orders  of,  in  relation  to  goods  imported  into  rebel  districts  by 

aliens,  and  Lord  Lyons's  objections  thereto,  considered,      385 

BUCKINGHAM,   C.   P.,   BRIGADIER   GENERAL,      .        .        .489 

BUTLER,   B.  FM   GENERAL. 

military  commission  of,    ........     284 

C. 

CIVIL   WAR. 

peculiar  necessities  of, 196 

COLFAX,   SCHUYLER,   VICE-PRESIDENT,       .      434,436,438,441 
COMMERCIAL   INTERCOURSE. 

with  public  enemies.     See  "  Public  Enemies." 
CONFEDERATES,   OR  CO-CONSPIRATORS. 

with  our  public  enemies,  participes  criminis,    .         .         .      167,  204 
COURTS,   JUDICIAL. 

effect  of  war  upon,    .........     170 

D. 

DESERTERS. 

military  arrest  of, 213 

692 


ADDITIONAL    INDEX.  693 

DRAFT   OF   MILITARY  FORCES. 

liability  of  persons  resisting,     .......     199 

F. 

FORCE. 

when  the  use  of,  is  justifiable  and  lawful,  and  reasons  therefor,      186 
FORNEY,   HON.  J.  W.,  SECRETARY  OF   THE   SENATE, 

434,  436,  439,  442 
FRY,VJ.  B.,  PROVOST  MARSHAL  GENERAL,   .    .    .374 

a. 

GRANT,  U.   S.,   GENERAL, 378 

H. 

HUNTER,   MAJOR  GENERAL  DAVID,       ....    400,  492 

I. 

INDEMNITY. 

to  innocent  persons  for  damage  by  reason  of  military  arrests,  210,  216 
when  denied, 211,  212 

J. 

JUDGES   OF  JUDICIAL   COURTS. 

when  hostility  to  the  United  States  is  shown  by,  .  .  .171 
interference  with  our  military  operations  by,  .  .  .  .  172 
opinions  of,  not  to  be  taken  by  military  officers,  when,  .  .  172 
when  liable  to  military  arrest, 172 

L. 

LYONS,  LORD, 383,384,385 

M. 

McPHERSON,   HON.  EDWARD,  CLERK  H.  R.  U.   S. 

434,  436,  439,  441 

MILITARY  ARRESTS. 

of  persons  who  resist  drafts,     ...         ....     199 

necessity  of  power  of,  in  such  cases,          .....     199 

of  deserters, 213 


694  ADDITIONAL   INDEX. 

MILITARY   COMMANDERS. 

not  to  take  judicial  opinions,  when,  .....     172 

duties  of,  in  case  of  hostility  of  judges,     .....     172 

not   liable  civilly  or  criminally  for  arrests  made   by  order  of 

superior  officers,    ........     182 

MILITARY  POWERS. 

may  be  delegated,     .  181 

MILITARY  LAW. 

territorial  extent  to  which  it  is  applicable,        ....     200 

N. 
NECESSITY. 

law  of,  in  relation  to  the  objects  and  the  means  of  war,     .         .166 

P. 

PRICE,   H.,  ESQ., 375,  376 

PRICE,   WILLIAM,   ESQ., 381 

PUBLIC  ENEMIES. 

allies    of,   or  confederates  with,    rights   of    our  government 

against, 167 

when  judges  become  such, 171 

S- 

SAXTON,    BRIGADIER   GENERAL, 492 

SECRETARY  OF  THE  NAVY,   HON.   GIDEON   WELLES. 

opinion  requested  as  to  liability  of  navy  agents,        .         .         .     380 
SECRETARY   OF   STATE,    HON.   WM.   H.    SEWARD, 

302,  364,  365,  366,  368,  383,  384,  387,  388 

draft  of  bill  for,  relating  to  aliens'  claims,          ....     379 
SECRETARY   OF   WAR,   HON.   EDWIN  M.    STANTON. 

draft  of  reply  to  the  Senate  resolution  inquiring  why  he  had  not 

enrolled  certain  slaves,  &c.,    .."....     371 
SHEPLEY,   GEORGE  F.,   GENERAL. 

military  commission  of,     ........     284 

T. 

TREASURY    PERMITS. 

for  trading  with  the  enemy,  confer  only  a  personal  privilege,    .     378 
so  held  by  the  Supreme  Court.     See  cases  in  Appendix. 


ADDITIONAL   INDEX. 


695 


V. 

VINCENT,   THOS.   M.,   ASSISTANT  ADJUTANT  GENERAL,      489 

w. 

WADE,  B.  F.,  PRESIDENT  OF  THE  SENATE  PRO  TEM.,     .    441 
WAYNE,  MR.  JUSTICE, •     313 


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